The Limitations of Property Theory in Environmental Problems and the Legal Construction of Conservation

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  • 環境問題における所有論の限界と環境保全の論理構成

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Abstract

<p>Environmental rights are not certain to have legal recognition in Japan. Under such circumstances the new interpretation of common rights is asserted as the grounds for environmental rights: inhabitants have common rights in their place of residence and those rights can be grounds for environmental rights.</p><p>But there are some questions in this theorizing.</p><p>(1) Common rights are basically a form of feudal property and cannot exist in contemporary society which has dissolved the feudal community.</p><p>(2) Common rights as reflexive of living in a district are not recognized by law.</p><p>(3) Common forestry rights, as a form of common rights, have not always been protected throughout Japanese history.</p><p>There are several limitations to viewing common rights as the legal grounds for conservation.</p><p>Our theoretical strategies to break through these limitations are as follows. (1) Personal rights as the core of the environmental rights are recognized by law and can be the legal grounds for the conservation of inhabitants’ life environments. (2) As for the legal grounds for the conservation of valuable natural environments, we can assert the interest of a suit through the logic that the plaintiff represents the accumulation of all persons’ interests throughout the nation.</p>

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