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Rights of nature. The cutting edge of
contemporary social constitutionalism
Derechos de la naturaleza. La avanzada del
constitucionalismo social contemporáneo
Mallury Elizabeth Alcívar Toala
Universidad San Gregorio de Portoviejo
City:
Portoviejo
Country:
Ecuador
Ana Jessenia Arteaga Moreira
Universidad San Gregorio de Portoviejo
City:
Portoviejo
Country:
Ecuador
Original article (analysis)
RFJ, No. 11, 2022, pp. 193 - 209, ISSN 2588-0837
ABSTRACT:
The contribution presented in this research
explores the trajectories of constitutionalism in its history,
which accompanies the most relevant events of the modern
era. The author has set out to highlight the interrelations of
social factors, the interests of natural and legal persons, the
role of states and political groups and parties, and ideological
anchors, as the main elements that lead to constitutional texts
being placed in the leading role in the social fabric where they
are today. The most novel expressions of constitutionalism are
explored, among which the definition and recognition of the
rights of nature constitute one of the most novel and important
forms of its expression.
KEYWORDS:
Constitution, political system, law, human rights.
DOI 10.26807/rfj.v11i11.401
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RESUMEN:
La contribución que se presenta incursiona en las
trayectorias del constitucionalismo en su historia que acompaña
los acontecimientos más relevantes de la era moderna. La autora
se ha propuesto como objetivo destacar las interrelaciones de
factores sociales, intereses de personas naturales y jurídicas,
rol de los estados y de grupos y partidos políticos, anclajes
ideológicos, como elementos principales que conducen a
colocar los textos constitucionales en el papel protagónico del
tejido social donde hoy se encuentran. Se incursiona en las
expresiones más novedosas del constitucionalismo entre las que
la definición y reconocimiento de los derechos de la naturaleza
constituye una de las más novedosas e importantes formas de
expresión del mismo.
PALABRAS CLAVE:
Constitución, sistema político, Derecho,
derechos humanos.
JEL
CODE:
D23, B25.
INTRODUCTION
The proclaimed rule of law has been gradually
establishing itself as a guarantor of social rights through
different legal systems and political structures. The globalisation
of the 21st century is distinguished, among other factors, by the
socialisation of experiences that find in technologies and social
networks a scope that was unimaginable only decades ago. This
has an impact on the perception and assumption of human
rights as an amplified claim of individuals.
In what follows, we will now move through some
of the main threads that run through the state of the art of
constitutionalism studies.
The theoretical study of constitutionalism reveals
its elaborations in correspondence with the social system that
gives rise to them. During the 20th century, and especially in
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its second half, assessments of constitutionalism were biased
by the political criteria of the evaluator. If constitutionalism
originated in a capitalist social system, it was generally accepted
by academia. If, on the other hand, it originated in a social
system of those then known as “socialist”, it was repudiated
even before it was studied.
These positions biased the study of the experiences of
various nations, which limited the progress of studies on social
constitutionalism. In the opinion of the author of this essay,
any position that delegitimises per se the experience of any
nation is questionable. I draw here on the concept of “situated
knowledge” (Núñez, 2019), and notions of the epistemology of
the observer (Watzlawick and Krieg, 2000).
In both theoretical constructs, there are important
foundations that lead to revealing in the experience of each
nation the most dissimilar edges that contribute to knowledge,
without having to be discarded only because of their origin.
For this reason, the author does not agree with the
disqualifying affirmation based on the questionable expression,
due to its absolute nature, of the negation or inversion of
the principle of closure, which states that “everything that
is not prohibited is permitted” (CRE, 2008, art. 19). In other
words, the application of its opposite is taken as a basis for the
delegitimisation of the entirely legal system. In other words,
“everything that is not permitted is prohibited”. Although the
author does not support this inversion of a legal principle,
she considers, based on the contributions of the complex
thinking of Edgar Morin (1998), that such a position leads
to an unjustifiable simplification that detracts from the value
of the conclusions that emanate from it. These constitutions
- e.g., the Soviet ones of 1918, 1924, 1936, and 1977 - fall
within the ontological classification formulated by Professor K.
Loewenstein (1980) (quoted in the book “The Constitution of
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the Soviet Union”). Loewenstein (1980) (quoted by Paolantonio,
1987, p. 208) into semantic Constitutions, which are those
“disguise Constitutions” that establish a mere normative system
that serves to justify the holding of power by its current holders
without respecting individual rights.
Social processes are complex systems, in which
a very broad spectrum of factors that have an impact on the
social fabric at the same time and with different energies,
act in unison. Internal and external, subjective and objective,
economic-political-cultural-legal, etc. factors come together.
These and many other reasons make it advisable to place
the filter of situated knowledge and the epistemology of
the observer in the critical analysis of the constitutionalist
experiences in each country, which will make it possible to
reveal the positive aspects that are surely present in each one,
as well as their undesirable components in other latitudes or
national experiences. Furthermore,
From a Piagetian understanding, knowledge is always
a permanent construction characterised by difficulty,
as conscious knowledge requires effort on the part
of the person. Moreover, it is conceived as a process
of permanent search for equilibrium, that is, a game
of imbalance and rebalancing that is achieved as the
mind becomes involved and tries to get to know the
world and people. (Hernández, 2017, p. 39)
With the 20th century came new types of social
processes that “...emphasised non-linearity over linearity,
complexity oversimplification, the impossibility of eliminating
the measurer from the measurement...”
1
. These are elements to
1
Wallerstein (2003) deals with a study that was conducted by the
Gulbenkian Commission set up to elaborate ideas on the restructuring of
the social sciences in 1993 and which, under the leadership of Professor
Wallerstein, involved the work of 10 world-leading scientists. Of these,
six came from the social sciences, two from the natural sciences, and two
from the humanities. The book in question is a compilation of the results
of this wide-ranging work.
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be considered in any analysis, especially in the social sciences.
Among other things, this has made it possible to place the theme
of human rights as an aspiration for self-realization on a national
and regional level in political discourse, legal texts, economic
structures, and social demands. This helps to understand the
global force that law, and specifically constitutionalism, has
acquired in the most diverse multicultural settings.
A clear example of this is that the universe of
indigenous cultures has managed to place their claims,
leaders, and social practices in the daily exercise of the state,
governments, of the institutions of law, as actors of political
and economic power in many parts of the world, and even to
bring their leaders to key positions in the construction of public
policies in many countries.
This whole process of change with which humanity has
welcomed the 21st century finds in the specialised literature of
the legal and political sciences a prolific elaboration of different
trends that contribute to understanding the complexities of
today’s world and its understanding in theory.
The realisation of the rights of nature has been one
of the most important issues in recent years, especially since
the Rio de Janeiro Summit in 1992. This is due to the obvious
depletion of the planet’s natural resources and the effects of
climate change. At the same time, however, it is one of the most
controversial issues on which politicians, academics, and social
leaders often do not find common ground.
The problem that motivates this essay lies in the
insufficient protection of nature’s rights, which leads to the
continued depletion of its resources and a significant increase
in the effects of climate change.
The hypothesis that animates this essay is that,
although knowledge has advanced to the point of elaborating
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legal precepts that place the rights of nature in a place of visibility
in countries and on a global scale, which is sometimes even
expressed in a basic legal order for the exercise and protection
of the rights of nature, the absence of procedural actions leaves
gaps that prevent an effective result in the protection of life.
1. CONTEXTUALISATION OF CONSTITUTIONALISM
The primary antecedents of constitutionalism appear
in the Middle Ages, embodied in the medieval charters and
charters. The most important of these is the Charter of Aragon
of 1283, which became a kind of law to even the monarch had
to obey.
The Renaissance, which displaced submission to faith
and the search for truth in sacred texts, towards the path to
truth through science and its social bearer, the person, drew the
historical frontier that drove the origin of constitutionalism.
The first expression recognised as being closest to the idea
of the limitation of powers that prevailed in the origins of
constitutionalism is found in the Agreement of the People,
which, although it was not admitted, did lead to the emergence
in 1653 of the Instrument, which was approved by the English
Parliament, becoming one of the interesting paradoxes in the
history of law, being the first and only constitution of that State
“which has not had one until today”, as Paolantonio (1987, p.
199) points out.
The understanding of the need for a body of law with a
constitutional character emerges from the conjunction of two
transcendental political processes in the history of humanity,
and in this, the authors in the specialised literature agree.
These are the French Revolution and the Declaration of the
Rights of Man and the Citizen. But this researcher considers
that this duality should be added, to form a robust triad, the
process of independence of the English colonies in the North of
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the Americas and the proclamation of citizens’ rights in them,
among which the Virginia Declaration of Rights of 1776 and the
Massachusetts Declaration of Rights of 1780 stand out as the
most advanced examples.
From this triad of events and political-legal-economic
thought, Constitutionalism emerged, with its ideological bases
recognised in the human rights and then proclaimed in what
we know today as first and second-generation rights, which are
the basis of the rest of the set of rights on an international scale
identified as fourth, fifth and sixth generation rights.
The first manifestation of constitutionalism has liberal
ideological foundations, and it could not be otherwise since it is
a fruit of the legal political context in which it arose. Its function
was understood as limiting or restricting the exercise of political
power. The role of the constitutional body can be understood
according to the following formula: “Liberalism is the regime
of the rule of law, separated from civil society by a clear and
stable boundary of a constitutional nature” (Paolantonio, 1987,
p. 206).
The advance of constitutionalism, in its history,
distances itself from liberal ideology, and then from neoliberal
variants (although points of contact with ordoliberalism can be
observed) (Guillén, 2019) to place greater emphasis on human
rights, which later became social constitutionalism.
This appears in its most amplified expressions in the
years following the First World War, although it has its roots
in the process of transformation from an agrarian to industrial
societies, which matured throughout the 19th century, and
which finds expression in constitutionalism from the social and
political effects of this essentially economic transformation.
An explanation of this scope can be found in the
literature from the approach of Pieter Sieferle (2009), who
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visualises the relevant role of energy in this process according
to the logic that the “fossil-energy transformation manifested
itself in several partial revolutions, especially in the revolution
of the transport and communication system, in the revolution
of urbanisation and the demographic revolution” (p. 87). This
is the point at which the economic and political-legal processes
that lead to the social approach of constitutionalism, and which
are expressed in the emergence of social rights in these texts,
come together.
2. LIBERAL AND SOCIAL CONSTITUTIONALISM
The difference between liberal and social
constitutionalism is sometimes understood as a phenomenon
of wills and not of circumstances. The recognition of the role of
rights, according to Paolontino, was already embodied since the
French Revolution, but:
It happened that members of the ruling classes
illegitimately took advantage of the liberal ideology
to preserve and increase their privileges, betraying
the ethical principles that govern the doctrine and
generating an enormous mistrust among the people
towards anything with the liberal label. (Paolantonio,
1987, p. 207)
The author does not entirely agree with this approach,
which she again considers being a simplification of the
complexities of legal frameworks and their effects on social
behaviour. A nation’s legal system has sufficient instruments to
“shield” constitutional jurisdiction at a level that is not absolute
(nothing is absolute in human life) but adequate. There have
always been and always will be people who try to obtain
individual benefits by circumventing the rough and tumble of
the law. But that is all it is, actions against the legal status that
do not determine the legal ethos of society.
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The distinction between the conceptions and practices
of liberal and social constitutionalism lies in the essential weight
of the social rights that the latter hierarchises as the ethos of the
legal system, and this degree to which rights are scaled up sees
its appearance from the Second World War onwards.
The most obvious demonstration of this essential
difference between the two comes from observing the most
acute social problems experienced by European countries
in the 21st century, which for years were attributed to the
primacy in the splendour of social constitutionalism that had
its foundations in the proclaimed welfare state.
The most current events in the European Union show
populations affected by high unemployment figures, social
violence, and severely damaged economies that have diminished
the levels of wellbeing previously achieved.
In today’s Europe they prevail:
In highly fragmented societies, without social agents
capable of mobilising, with a population subjected
to the dictates of consumption and controlled by the
carrot and stick of credit and its repayment, only the
Law (and that Law with a capital letter that is the
Constitution) can serve as a fulcrum for a strategy of
resistance and struggle. (Cabo de la Vega, 2012, p. 55)
Social dynamics are complex. They involve a
vigorous spectrum of motives, interests, actions, institutions,
people, communities, nature, cultures, scientific knowledge,
technologies, and an even wider range of components of the
social fabric, which, all together and with very different forces
and tendencies, act and shape what we call society and nation.
It is difficult to draw clear dividing lines that mark
inviolable boundaries between different expressions of
this social life. Europe, which comes from the 20th century
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leaving behind half a century of the welfare state, protected
by social constitutionalism that some take as a reference not
without reason, shows in the 21st century political, economic,
and social practices protected by a regional normativity
that is more reminiscent of the harshest moments of liberal
constitutionalism.
It may be thought, not without reason, that in this half
of the 21st century in Europe, both expressions of classical
constitutionalism, the liberal and the social, converge in a
difficult contradiction.
In Latin America, however, not in all the magnificent
diversity of the region, but several countries, the strong irruption
of constitutional changes of a markedly social character can be
seen. Ecuador, Argentina, Bolivia, Cuba, Honduras, Venezuela,
and Mexico (whose intentions in this direction have just been
opened by President Andrés Manuel López Obrador) have
been the most prominent. The focus of these constitutional
changes has mainly been on the issue of human rights and the
protection of multiculturalism of which most of the countries
are repositories. These experiences even brought the second
indigenous president of the Americas to the highest position
of state (the first was Benito Juárez in Mexico, although this is
hardly remembered).
But as in the old continent (i.e., Europe), these advances
are taking place during deep political tensions and high levels
of social conflict. The issue of the pluriculturality of peoples
has perhaps been the one that has attracted the most attention
from constitutional scholars. However, it is not the only novel
one. The author of this essay considers that the treatment of
the rights of nature in the constitutional changes taking place in
Latin America is even more so, due to its global impact.
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This is a less trodden path, both in the practice of law
and in the universe of legal, environmental, economic, political,
and so-called natural sciences.
It is, as recognised in the specialised literature, the most
obvious transdisciplinary object of law - science. The rights of
nature cannot be understood from the law, from ecology, or
even from the conjunction of both disciplines, which seem to
be the closest to the subject.
Philosophical perspectives are needed to provide
epistemic and ethical approaches, and economic perspectives
to unravel the complicated web of economic development
interests that damage the planet’s ecological reserves and
become robust predatory interests. To this, it is recommended
to add lesser-known transdisciplines such as political ecology,
precision technologies (drones for example), the science of
sustainability, and pluricultural perspectives that enrich the
understanding of non-human life and help us to discard once
and for all the utilitarian approach that sought to dominate
nature, which has turned out to be something like dominating
the indomitable.
Furthermore, “the circular economy currently has a
great inspirational force and constitutes a reasonable strategy
to achieve the much-desired global sustainability. This requires
the joint work of government, business, academia, and society
in general” (Almeida and Díaz, 2020, p. 46).
3. THE RIGHTS OF NATURE
As can be seen, the issues of the rights of nature
involve a wide range of disciplines. But this is not a condition
that is exclusive to this field of knowledge. The neurosciences,
the cognotechno-sciences, speak to us of a trend in scientific
progress towards the integration of knowledge from which the
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rights of nature do not escape. The author intends to defend
the need for an epistemic treatment of this field of knowledge
whose launching pad is the legal sciences, but whose global
scope is the development of life.
The rights of nature are first and foremost a
transdiscipline, which marks their epistemological status,
and not only a novel construction of knowledge that requires
transdisciplinary approaches (Gudynas, 2016). Nor is it
the only one in this field. It is accompanied by many other
perspectives whose conceptual and practical conjunction must
be constructed from the logic of nature and its rights, and not
from the well-known and limited logic of each discipline.
Ecuador is rightly considered a pioneer in the
constitutional recognition of the rights of nature. The text of
the 2008 Montecristi Constitution attests to this. The novelty
of the subject allows for the incorporation of an interesting
group of concepts and debates (Gudynas, 2016) in the field of
ethics, such as the values of nature, environmental citizenship,
biodiversity values, nature, environment, environmental
management, responsible citizenship, and others. It is about the
gradual construction of a new ethics of nature
2
.
The Constitution of the Republic of Ecuador,
proclaimed in 2008, expresses from the preamble definitions
of the value of nature for life. Article 10 recognises rights on an
equal footing with the rights of individuals. It states:
Art. 10.- Individuals, communities, peoples,
nationalities, and collectives are holders and shall
enjoy the rights guaranteed in the Constitution and
international instruments.
2 In the literature, we find the expression “ethics in the face of nature”
(Gudynas, 2016, n. p. ), which the author of this essay considers deserves
a broader theoretical discussion in light of current technological advances.
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Nature shall be the subject of those rights recognised
by the Constitution. (CRE, 2008, art. 10)
In Chapter VI, dedicated to the Rights of Freedom, the
prohibition is declared that, in the free exercise of the right to
conscientious objection, it is forbidden to “undermine other
rights, or cause harm to people or nature” (CRE, 2008, art. 66.12).
Further on in the chapter itself, it states: “The right to
live in a healthy, ecologically balanced environment, free of
pollution and in harmony with nature” (CRE, 2008, art. 66.27).
Up to this part of the constitutional text, it does not
differ from the usual declarations of principles underlying a
utilitarian view of nature for the benefit of human life. What
makes the Constitution of Montecristi different is contained in
Chapter VII, a section entirely dedicated to the rights of nature.
The chapter begins with cardinal formulations:
Art. 71.- Nature or Pacha Mama, where life is
reproduced and realised, has the right to full respect for
its existence and the maintenance and regeneration of
its vital cycles, structure, functions, and evolutionary
processes.
Any person, community, people, or nationality may
demand from the public authority the fulfillment of
the rights of nature. In applying and interpreting these
rights, the principles established in the Constitution
shall be observed, as appropriate. The State shall
encourage natural and legal persons and collectives
to protect nature and shall promote respect for all the
elements that make up an ecosystem.
Art. 72.- Nature has the right to restoration (...). (CRE,
2008, arts. 71-72).
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He concludes by pointing out:
Art. 74.- Individuals, communities, peoples, and
nationalities shall have the right to benefit from the
environment and the natural resources that allow them
to live well.
Environmental services shall not be subject to
appropriation; their production, provision, use, and
exploitation shall be regulated by the State. (CRE, 2008,
art. 74)
Undoubtedly, the inclusion of these regulatory concepts
constitutes an important step forward in respecting the rights
of nature.
However, the author would like to draw the reader’s
attention to the limited identification of these rights, which is a
sign of the scarce theoretical elaboration and presence of these
rights in public policies.
It is a field of knowledge that is still almost untouched
in the legal and political spheres. On the other hand, political
speeches from the world’s great tribunes are often more
abundant than the actions of practical materialisation of what
these speeches propose.
And if these limitations are so evident in one of the few
constitutions in the world that have endowed itself with such
a section recognising the existence of “rights of nature”, they
are even more limited in the practical implementation of these
rights through their presence in doctrine, in rules in procedural
actions and, therefore, in jurisprudence in general.
This is an essential subject, still pending, for studies in
the legal sciences.
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CONCLUSIONS
The history of constitutionalism allows us to see the
sources of the contradictory tendencies it has shown in the two
decades of the 21st century. At the same time, however, it also
makes it possible to see the guidelines that are leading it in the
direction of a strengthening of social constitutionalism that
makes the legal and social logic of rights prevail, including the
rights of nature.
Moreover, the society in which we live today needs to
amplify the spaces for the socialisation of knowledge built in the
field of the rights of nature. It is not a matter of dividing into parts
the universe of life rights that must be defended, many of which
have yet to be identified, conceptualised, and incorporated into
the legislative bodies of the global community and each nation.
At the same time as progress is made in the field of knowledge
in any of its parts, these advances must find expression in public
policies, in academic debates, in community enclaves, and be
protected by effective jurisprudence. These are the paths that
humanity must still follow.
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Received:
20/04/2021
Accepted:
28/05/2022
Mallury Elizabeth Alcívar Toala:
San Gregorio de Portoviejo
University
Email:
mealcivar@sangregorio.edu.ec
City:
Portoviejo
Country:
Ecuador
ORCID:
https://orcid.org/0000-0002-1128-6361
Ana Jessenia Arteaga Moreira:
San Gregorio University of
Portoviejo
Email:
ajarteaga@sangregorio.edu.ec
City:
Portoviejo
Country:
Ecuador
ORCID:
https://orcid.org/0000-0002-9536-3036