To Rise above Principle: The Memoirs of an Unreconstructed Dean.

Kauffman, Joseph F.; Martin, Josef

doi:10.2307/1982084

Cited by 4 publications

(13 citation statements)

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“…76 This is also incorporated in a chapter of the Constitution on economic sovereignty in which it states that the 'economic system … tends towards a dynamic, balanced relationship among society, State and the market, in harmony with nature'. 77 On this basis, the new Constitution has been described as a decolonial project intended to break away from Ecuador's imperial-based legal system as well as to move towards an 'alternative model of sustainable development' 78 based on Indigenous beliefs. 79 Adaptation to Ecuador's legal system…”

Section: Rationale Behind the Constitutional Amendmentmentioning

confidence: 99%

“…82 In addition, the Defensoría del Pueblo, a government ombudsman tasked with the protection of human rights, may also take up the role of representing nature's interests. 83 There is no single body established as guardian. Instead, the constitutional norms are intended to be enforced through a broad standing doctrine.…”

Section: Rationale Behind the Constitutional Amendmentmentioning

confidence: 99%

“…93 On the other hand, the broad scope of the term is consistent with the intention of portraying nature as an interconnected ecosystem. 94 Generally speaking, it is common for constitutional texts to use broad language and this is particularly apparent in constitutions in Latin America. 95 Nevertheless, some scholars have expressed concern that the rights of nature in the Ecuadorian Constitution are empty postulations, merely aiming to gain the political support of Indigenous groups or improving Ecuador's image within the international community.…”

Section: Effective Enforcement In Ecuadormentioning

confidence: 99%

“…100 The government argues that profits from mining are needed for a successful economy independent of fossil fuels and, therefore, to ensure the 'good way of living' enshrined both in the preamble and in Article 74 of the Constitution. 101 It becomes evident how the enforcement of constitutional rights of nature can ultimately be influenced by the state's policy priorities which, in the case of Ecuador, delayed the process of creating the institutional framework and secondary laws necessary to effectively implement these rights. 102 This changed in 2014 when Ecuador adopted a new Penal Code specifying crimes against nature.…”

Section: Effective Enforcement In Ecuadormentioning

confidence: 99%

“…Kauffman and Martin argue that even norms created just 'for show' can have impact because of the way in which they are gradually incorporated into the country's governance processes and legal system. 104 With regard to litigation, they found that civil society action and government action, as well as the application of rights of nature by the judges themselves, lead to a better understanding of the content of those rights and how they are balanced with other interests, such as interests of an economic nature. 105 Nevertheless, there have been setbacks in judicial proceedings.…”

Section: Effective Enforcement In Ecuadormentioning

confidence: 99%

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Paving the Way for Rights of Nature in Germany: Lessons Learnt from Legal Reform in New Zealand and Ecuador

Schimmöller¹

2020

TEL

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This article examines the concept of granting legal rights to nature as a strategy for more effective environmental protection in the era of the Anthropocene. Following decades of debate over the possibility and consequences of natural objects becoming legal rights holders, a number of countries have recently implemented rights of nature laws in their national legal systems. Comparing two of these examples – a constitutional amendment in Ecuador and recently transposed legislation in New Zealand – will help in understanding the potential for and challenges in the implementation of this concept. On the basis of the findings of this comparison the article further analyzes the possibility of legal reform in a European country, using Germany by way of example. This analysis demonstrates that the realization of rights of nature in Europe is faced with many obstacles as it contests institutional and legal frameworks that are deeply rooted in Western individual rights doctrines and neoliberal economic models. Nevertheless, the holistic approach of expanding the number of rights-bearing subjects beyond an anthropocentric framework can allow for more serious consideration of environmental interests, something that aligns with the German narrative of recognizing nature's intrinsic value in law and the need for effective environmental protection measures.

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Section: Rationale Behind the Constitutional Amendmentmentioning

confidence: 99%

Section: Rationale Behind the Constitutional Amendmentmentioning

confidence: 99%

Section: Effective Enforcement In Ecuadormentioning

confidence: 99%

Section: Effective Enforcement In Ecuadormentioning

confidence: 99%

Section: Effective Enforcement In Ecuadormentioning

confidence: 99%

See 3 more Smart Citations

Paving the Way for Rights of Nature in Germany: Lessons Learnt from Legal Reform in New Zealand and Ecuador

Schimmöller¹

2020

TEL

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Rights of Nature, Legal Personality, and Indigenous Philosophies

Tănăsescu¹

2020

TEL

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This article investigates the relationship between legal personality for nature and Indigenous philosophies by comparing two cases: the Ecuadorian Constitution of 2008 and the 2014 Te Urewera Act of Aotearoa, New Zealand. Through these case studies the article considers the nature of Indigenous relations with the concept of rights of nature, arguing that this relation is primarily strategic, not genealogical. The article engages with the concept of legal personality and shows that it is not a direct translation of Indigenous conceptions, but rather a potential straitjacket for Indigenous emancipatory politics. The radical character of Indigenous ontologies is not fully reflected in the concept of legal personality. Furthermore, the way in which rights are granted to the natural environment is an important part of the effect that such rights might have on Indigenous communities. Despite some affinities between rights of the environment and Indigenous philosophies, overstating the connection might constrain the radical political and legal implications of Indigenous thought.

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