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Constitutional Environmental Rights$
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Tim Hayward

Print publication date: 2004

Print ISBN-13: 9780199278688

Published to Oxford Scholarship Online: July 2005

DOI: 10.1093/0199278687.001.0001

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Environmental Rights as Democratic Rights

Environmental Rights as Democratic Rights

(p.129) 4 Environmental Rights as Democratic Rights
Constitutional Environmental Rights

Tim Hayward (Contributor Webpage)

Oxford University Press

Constitutionalising a right makes it immune to the possibility of (routine) democratic revision. So, constitutional rights that set certain substantive values beyond the reach of routine political revision have the effect of pre-empting decisions that might otherwise be arrived at through democratic procedures. To the extent that environmental rights can be taken to embody substantive value commitments, they would appear to be vulnerable to the criticism that the constitutional entrenchment of them is undemocratic. Certain procedural rights, however, are necessary for the very functioning of democracy as such. Can procedural environmental rights be justified on this ground? And what about the substantive right to an adequate environment? Argues that both kinds of environmental rights, in common with some existing and far less controversial rights, can in fact be justified on the very grounds that democracy itself is justified.

Keywords:   democracy, democratic rights, environmental rights, judiciary, legitimacy, negative rights, procedural rights, substantive rights, undemocratic

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