I do not know whether we can see the outlines of a really brave and new world order in which the environmentalist aspects are predominant. I do not know whether a new environmentalist world order would truly fulfil the expectations of people and states, whether people as citizens of states could find a compromise good for all participants of the world's sociosphere. On September 22nd, 2009, a countdown was launched in New York, under the auspices of the United Nations Organization. The period of countdown is of eighty days and precedes the summit meeting in Copenhagen on climate change (December 7-18, 2009). The leaders of the biggest countries of our Earth expressed their deep commitment in the environment protection. In Europe, the greenhouse gas emission was reduced by 3.06 percent, though about 50-60 percent would suffice to stop the global warming. Year by year, the surface of the Arctic becomes smaller and smaller. The facts are given. The international community expects regulations which could be implemented by all countries of the globe. It depends on us to bring about a really brave new world in order to keep off the nightmare of a Huxlian new world.
Many experts believe that the "cap and trade" model of emissions trading has not resulted in any decrease of the greenhouse gas emissions. From the aspect of environmental philosophy, the environment protection cannot be based on the pragmatism of commerce. A new solution is required to stop polluting and to stop extirpating the natural environment. A new solution should not stay on the level of states and of huge companies. It should involve the everyday man and woman and bring the cause of environment protection much closer to the citizens than anytime before. The emissions trade might be fruitful, though, only when citizens might have their voice heard and when the leaders of the states and the leaders of globally acting companies would see their personal environmental rights at stake. Or, at least, those leaders would see their private law interest meet the public interest of protecting the natural environment of the Earth and of the surrounding universe.
Nowadays, the private interests of the few collide the public interests of the numerous, though far too weak masses. The weakness of the masses is concealed in their poor legal weapons to fight for their rights, for the human rights, as well as for their right to a healthy environment. The right to a healthy environment of the masses of people is a special new art of human rights. The collision of private and public interests show up in a clear-cut mode in the domain of environment protection. The minority with an economic power should not exercise immoral or illegal pressure on the majority of people without a proper protection by law and the majority of a society should not push aside the interests of the minority groups, mainly when these latter interests are based on public law, or on public international law.
The environmental justice is to be seriously considered and enacted by the national parliaments. The environmentally just self-conduct in behalf of the minorities is immanent in a democracy of plural values. It is the public's task to show respect and it is the minorities' moral obligation to coact in symbiosis with the majority. The public interest is not always above the private interest, nonetheless, it is up to the public to lay out the scope of private law functioning. The individual harms suffered by several people are brought before court, or before other instances by the person assigned by the social groups feeling a need for a common remedy, or retributive justice. Acting for the people and acting by the people are not in contrast. Notwithstanding, the single elements of the people's masses, i.e. the individuals have their public and private exigences alike. Even these exigences might be in contradiction with each other and if so, the wants of the individuals serving the public ought to come before the individual wants promoting an individual personal, or economic well-being. Though the private comfort is important, the legally and morally correct wants of a whole society is to gain priority in being protected by the law and before the law. The actio popularis, i.e., in Latin, the acting for the people is a special tool (instrumentum speciale) for the general interest (commodum generale).
In ancient Roman Law, we may find the origin of today's people's actions. Actions, like the actio
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sepulchri violati in case of violation of a tomb, could be submitted by any person without proving his or her personal interest in the concrete case. The person thus acted in the interest of the public, of all people who would find it necessary to impede any violations of the good old ethics. An actio popularis has almost never been used to defend new laws, but to defend the public peace and other public values evolved during centuries of human history. What the people of the Roman Empire found publically relevant is not surely of the same importance today. We have a new social system, thus, we have new social interests to be shielded. The ancient Roman people did not find the natural environment important enough to be protected by the action of any member of the people, though they protected the natural environment as proprietors' private object of value. Nowadays, we have changed a little bit this aspect and we think that the natural environment deserves protection not only as an object of private property, but also as a common value. We try to determine the value of our environment in dollars, but it can hardly be done so. Where there is no exact sum, the ethical value is to be taken into account, expressed in the level of health, well-being, and good feelings. These good feelings are connected to the unisono of environment protection, prompted by the climate change, by the perishing of biodiversity, by the urgent need of an ecological economics and also by the solicitude for the next generations.
The people's implication in their public affairs goes back to the dawning of humanity. It has always been important that the governing power be vested in the governed people. Is not it so in the animal kingdom too? Humanity, however, has special rights which stem from the unexplainable human character. Is that really unexplainable? Could we truly tell us from other beings, such as animals or plants? Do we consider the others, i.e. the animals and plants as subjected to our private and public interests? We have problems even when trying to harmonize the commoda publica and the commoda privata. The key-word is harmonization. Harmonizing the human existence with the universe is not as difficult as harmonizing the private interests with the public ones.
During history, people have always made efforts to reach an acceptable good ratio of the two kinds of interests, though with only a little success. Nowadays, we assist to the birth, or rather to the renewal of the institution of actio popularis, i.e. of that of an action aiming at a remedy by a pro bono civil organization or by the public prosecutor in the name of the people. In Hungary, the environmental actio popularis was created by the Act No. 53 of 1995 on Environment Protection, also by the Act No. 53 of 1996 on the Protection of the Nature, as well as by the Act No. 28 of 1998 on the Protection of the Animals. Hungary is awaiting the introduction of a new Civil Code in 2010 which will make allusion to these institutions. The legislator partly keeps, partly adapts the notion of "damage caused by violating the rules of nature protection" defined by Subsection (2) of Section 81 of the Act on the Protection of the Nature and makes it possible for the public prosecutor to request symbolical damages in the name of groups of people, or of the whole society when these latter ones suffer harm originating from the violation of the rules of nature protection.
Starting from the Laws by Plato, through the Digests by Justinian and The Spirit of the Laws by Montesquieu, we arrived at the 19th century's authors' realm of legal philosophy. The 19th century's legal philosophy happened for the first time to be incorporated in acts of parliaments or/and in acts of constitutional monarchs. We had had to wait almost two and a half millenaries to see legal philosophy and real legislation matching. In the first half of the 20th century, disturbing factors often emerged when peoples and nations became engaged in producing a modern law. Finally, after some more decades of fruitless waiting and expectations, the 90s of the 20th century brought us a new era of law-making. It was a long journey in history and we still cannot know how far legislation may go further. Ecclesiastes says (1,9): "The thing that hath been, it is that which shall be; and that which is done is that which shall be done: and there is no new thing under the sun." Are we supposed to agree with the desperate speech of Salomon? Is it right that "there is no remembrance of former things, neither shall there be any remembrance of things that are to come with those that shall come after" (ibid. 1,11)? I do not think so. The human memory is something unique, as compared to that of other living beings. We can recall not only seconds, but thousands of years of legal culture alike. We can see the difference between past and present, and we can perceive the development of law and human rights.
Today, In Hungary, we have a modern law, better to say, a postmodern law, in the spirit of postmaterialism. Having surpassed the legacy of marxism and leninism does not mean forgetting those courses of philosophy. Respiritualization of Hungary's legal atmosphere was concomitant with not just spiritualism, but also with "magic in law". Fortunately, this magical way of thinking cannot be found in law-making, but in the everyday practice. The Hungarian jurisprudence furnishes a number of examples, starting from the National Election Office, through the Constitutional Court, up to the general jurisdic-
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tion. It is not the lawyer, but the petitioner who tends to express a certain magical thinking when, for example, asking the Office whether Hungary could be a hereditary kingdom of the petitioner, whether speaking before public in an impolite way about the folkloric falcon (i.e. the Falco cherrug) figuring in fairy tails, could be punished by imprisonment, whether speaking before public in a humiliating way about the crown of the first king of Hungary, supposed to emanate some supernatural energy, should be punished by up to one year of imprisonment, forced labour or fine, whether Hungary ought to be governed by a priest, etc.
Of course, all that is just an unavoidable corollarium and the true and real successes of our newborn democracy should not be contemplated through the irrealistic and emotionalizing spectacles of the few. The outcomes of our democracy, defined in the Constitution of Hungary as a social market economy, are mostly positive (involving the field of environment protection as well). Hungary's first national Civil Code was passed in 1959 (entered into force on May 1st, 1960) and the second Civil Code is to enter into force in 2010, exactly on the same day as sixty years before. This will be a green civil code. Not only because of defining animals as more than objects (following the examples of the German, of the Austrian, and of the Swiss civil codes). The whole spirit of the new Hungarian Civil Code fosters the protection of the environment. The protection of the abiotic environmental elements, such as soil, air, and water, is in the same line as the protection of living creatures, such as plants and animals.
In the 17th century, Spinoza wrote in his Ethics: "It is impossible for man not to behave as a component of the nature."[1] Mankind is a part of the natural environment and the sociosphere established by mankind is indeed only a microcosmos within the nature. People started to think in an environmentalist way only when they realized that their existence is tightly related to the natural environment and that they have no chance to secede from the nature. The deep ecological Weltanshauung of the Spinozian ethics is clear. The collective whole of a community is always closer to the mother nature than an individuum alone.
The new Hungarian Civil Code defines the notion of environmental damage, adapting the notion of "damage caused by violating the rules of nature protection" (Act on the Protection of the Nature): death, injury, damage to health, damnum emergens and lucrum cessans; cost of restoration and prevention; damage to the life quality of the individuals, of the groups of persons or of the society as a whole. In case of unmeasurable damage to the life quality of groups of persons or of the whole society, based on pure unlawfulness (nuda injuria), exclusively the public prosecutor is authorized to request a symbolical sum of money for the Fund of Environment Protection of the Central State Budget. (See Subsection (2) of Section 2:96 of the new Hungarian Civil Code.)
The enforcement of the commodum publicum remains the task of the pro bono civil organizations and it is also in the hands of the public prosecutor. The public prosecutor may ask for damages, as well as for an injunction, whereas the pro bono civil organizations may ask for an injunction only. In Hungary, unlike under English law, injunction precedes damages. (See Subsection (2) of Section 5:541 of the new Hungarian Civil Code.)
We have to go back in history in order to see why mankind felt it an urgent need to allow one to act in the interest of another. It is quite simple to understand why people needed to mandate someone else to represent them before the court or in other areas of the vita publica (e.g. House of Representatives, special envoyees, etc.). Defeating a geographical distance was not always as easy as today. Though, nowadays, people can cover a long distance in a few hours, people still need to be represented. Why? Because it is not just the physical distance, but also the shortage of time, or the quotient of distance (s) and time (t), i.e. the velocity (v = s/t) that people are in lack of. If people cannot react quickly enough, it is either because they are too far from where they should be (s = vt), or because they have not got enough free time to appear before court (t = s/ v). Anyhow, people still need to be represented by the public prosecutor or by a pro bono civil organization when their common interests are in danger. The right of those mandatories to represent people's interests is precised by law and restricted to special cases when social values, like environment, nature, and animals, or consumers as a whole are to be protected.
Despite hostilities among people, despite the old-new phenomenon of magical thinking, the Hungarian people have achieved a truthfully European level of legal functioning and of operating the rule of law. A country of plural democracy cannot afford too much digression from the ethically founded norms of its legal system. Those ethical and juristic rules derive from case law. Changes to the acts of law are usually provoked by cases before the courts of Hungary. It has always been so, from the time of the kings, through currying favor with the Drittes
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Reich, under the so-called 40 years of Hungarian-type communism, up to the last twenty years (from 1989 to 2009). In the case No. 43 Pf. 28 768/1998, the Court of Budapest found the operator of a highway liable for the harms caused to the life quality of the neighbouring inhabitants by the operation of the highway. The must to preserve the quality of the life of several inhabitants may leed the judge, who in Hungary decides on lawfulness (de juribus) and on facts (de factis) alike, to take into account the common interests of inhabitants which were not properly considered by the mid-nineties of the last century. As we could see in the above case, no concrete legal norm is supposed to be violated in order to ask for indemnity. It is sufficient to prove that an interest protected by law - in this case, the plaintiff's right to a healthy environment - had been violated. The damages to be payed depends on the loss of value of the plaintiff's real estate. So liability can be based on a constitutional right, but the determination of the exact sum to be payed comes after. The violation of a law can be declared by the court, although, it is mainly the plaintiff's task to prove how much he or she has lost.
In the case No. Pf. I. 20 187/2006 before the Regional Court of Szeged, the public prosecutor asked for damages on behalf of the Hungarian State, because a logging in a nature conservation area resulted in the deterioration of several people's living conditions. In the case No. 2. Pf. 20 290/2000/5 before the County Court of Zala, it was questioned by the defendant whether the public prosecutor had the right to ask for general damages to be versed in the State Budget or not. The court stated that the payment of this latter kind of damages does not exclude the right of a man or woman suffering a personal harm to ask for indemnity. With time, people are getting accomodated to the possible cumulation of indemnities, once based on a private interest (a commodum privatum), then based on a public interest (a commodum publicum). Judges must be tolerant, though not beyond the limits of law. Ignorantia juris non excusat.
Communities have special rights as compared to an individual. Those special rights are related to the common characters circumscribing a smaller or a larger community. The right to an undisturbed existence of a community is sociologically much more important than that of but one person. Article 28 of the Universal Declaration of Human Rights (1948) says: "Everyone is entitled to a social and international order in which his human rights and freedoms can be fully realized." But it is all not just about rights of groups of people or of those of whole societies. The verso of the right is the duty. Article 29 of the Declaration (1948) says: "Everyone has duties to the community in which alone the full and free development of his personality is possible. In the exercise of his rights and freedoms, everyone shall be subject to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society." In Hungary, the rights of groups of persons are still under renovation. (See e.g. the debate over the civil law regulation of the "speech of hatred" against a [racial or ethnic] community.) The Hungarian legislators feel that democracy is based on the well-being of the uncountable masses of men and women; of the critical masses with special traits and with a social and/or political power having effect on the State and on the Government. In Hungary, the right to a healthy environment is constitutionalized under Section 18 and Section 70/D of the Constitution. The text of the Constitution mentions a not only individual but rather a collective right. The collective right to a healthy environment can be enforced by the representatives of those collectivities. If it is not the people who directly choose their representatives, then it is the elected Parliament's task to select those representatives. The Parliament has codified that the public prosecutor is, in Hungary, a general defensor of the people's rights at various levels of the social existence: in the field of jurisdiction, of public administration, of the sphere of labour law and the public prosecutor is also a defensor of the rights of condominium homes' proprietors. The pro bono civil organizations in the field are also given rights, though, not the right to ask for indemnity in the name of the people, but to ask for preventive measures and, in certain cases, for an injunction.
The basic rule of vis in multitudine is to be found in the backgroundn of the defense of the multitude's rights. I.e. one multiplied by one thousand yields more than one thousand (1 x 1000 > 1000). The correct application of the law might not disregard this evident and simple formula. The rule of law is only correct when based on the respect for human rights and also on the respect for the peoples' common right to nature and environment. According to Section 2 of Article 1 of the International Covenant on Economic, Social and Cultural Rights (1966), "all peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefit, and international law". In Hungary, as a general rule, the natural resources, forests, water, agricultural lands etc. have been public properties since a long
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time. Before the political changes around 1989, the Article 6 of the Hungarian Constitution declared this lex generalis, by virtue of the international law. At present, Section (2) of Article 10 of the Constitution says that the exclusive sphere of state properties and of the economic functions of the state are determined by law. The relative regulations have not remained in the Constitution, but, according to a pragmatic teleology, those regulations are detailed by acts of the Parliament, starting from the Civil Code and up to lower laws.
People fettered in the cave of Plato (The State), when coming to the light of the truth, do not wish to return to their cave anymore.[2] The human rights foundations of the environmental actio popularis are getting inserted into the national laws. Nowadays, the human rights translated into constitutional rights are, even in the countries of the former soviet sphere of interest, evoked in the course of judicial processes. It says that the previously much criticized general assertions of the human rights codes and those of the constitutional rules, considered in Hungary before 1989 as symbolical generous statements, begin to directly induce concrete rights and duties which can be discussed before court. The principles are, on one hand, criticized, but, on the other hand, they are more and more seriously taken into consideration in the practice of law, and not only sub judice. This favors the environment protection which was born as a general rule of international law (apart from the environmental private law with the neighbourhood inconveniences, such as seen in the case Rylands versus Fletcher in 1868 under English law), and which later came to the level of the constitutional principii.
Legal practice forwards a lot the protection of the environment, as practitioners and legislators tend to transform the right to a healthy environment into a commodum privatum. Thus we can see that the environment protection is supported not only by the public, i.e. by the society as a whole, but also by the individuals who, in the foreground, enforce their personal rights, though, in the background, by the same act of vindication of those rights, advance the common cause of environment protection. The case Rylands versus Fletcher, under English law, can be regarded as a source of an early environment protection from a private law aspect. Today's environmental private law cases are rather about the person's right to a healthy environment, as conceived by the new Hungarian Civil Code, and as predicted in the case No. Pf. I. 20 187/2006 before the Regional Court of Szeged, and also as formulated, at an early stage and under the pressure of developments in the field of international environmental law, by the Act on Environment Protection and by the Act on the Protection of the Nature, as well as by the Act on the Protection of the Animals. The civil liability for a damage caused by endangering the human environment appeared in the Hungarian legislation in 1976, about a decade after the international codification of the human right of peoples to their natural resources in 1966.
In the mind of people, a public prosecutor is someone in the service of criminal procedure law. This idea is to be changed. A public prosecutor is not necessarily obsessed with the prosecution of criminals. He or she also prosecutes enemies of the environment, i.e. enemies of the people, though those enemies of the environment are not necessarily perpetrators of crimes too. According to the Act No. 5 of 1972, the public prosecutor is the main safeguarder of the people's rights. The people's rights do not always match the human rights, although, we understand the humans under the notion of the people and those people have human rights. The public prosecutor thus becomes a defensor of human rights, and, among them, that of the rights for their natural environment. The portrait of the public prosecutor is under reconstruction. Changing the mind of people may last long, sometimes too long.
In a society directed by the workers' class, people got accustomed to public prosecutors to be feared. In present Hungary, it is not anymore the workers' class or any other social class that exclusively conducts the people and the public prosecutors obtained a very important role of safeguarding and validating the people's rights, including a number of human rights as well. The public prosecutors must be given back their positive image, lost in the past, however, it is also a must to make people perceive that they are entitled to a protection by the rule of law, rather than exposed to the perils and vicissitudes of the legal system.
With time, the public prosecutors' legal possibilities to act as defensors of the people's rights are getting broader. By virtue of the Act No. CXXXIII of 2003, from January 1st, 2010, the public prosecutor is the defensor of the rights of condominium homes' proprietors. Widening the scope of action of the public prosecutor stresses that these defensors of
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people's rights have accomplished their tasks with a great success. Esteemed and venered by the law-using society, they come to the level of their "sitting colleagues" (i.e. the judges). As for their salaries, the public prosecutors are payed equally to the judges. Their salary is determined by the Act on the Central State Budget. Considering their weight in the legal procedures, they also have a similar significance, however, a hostile standpoint of the average people might impede the fulfilment of their function as environment's defensors.
Environment is protected by the public prosecutor in the areas of both private and public law. Inside public law, the public prosecutor may have his voice heard in criminal law, in constitutional law, and in administrative law alike. It is a general view that the public prosecutor may have effect on the legal functioning of the whole society. Thus, it is possible for him or her to propose amendments to acts of law. Furthermore, the public prosecutors also partake in the science of law. The public prosecutors, as lecturers at the law faculties of the universities, teach the law students and do both theoretical and case research to promote the development of the science of law. A complex and complete covering of the legal modus of our society allows a complex and complete contemplation of the recently occupied position of environment protection in Hungary. The public prosecutor pursues those who do harm to the environment, acts up to the constitutional requirements, brings help to the everyday people in their cases. An environment-conscious thinking is concomitant with the respect of the rule of law as a basic principle of human rights (see the Preamble of the Universal Declaration of the Human Rights).
Changing people's mind is a real green activity, bringing both ecological and economic profits to a whole society, as well as to the international community. We should not forget that the public prosecutor is given similar rights in the field of protection of general interests in the domain of consumer protection. The green ethics and the ethical consumerism are rooted in the same fabric of social thinking and social consciousness. It was a necessary step of the state to provide the public prosecutors with completed rights similar to those of the citizens' pro bono civil organizations. From the side of the state, this is an expression of her feeling respect for people, as well as for their primary interests. Their interests to live in healthy surroundings and, although pushed to consume more and more, to do it without being misled or cheated.
The question might be asked whether men and women are part of the natural environment, or they are rather outsiders of it. For quite a long time, people thought that they were above all that was not human or, at least, not produced by humans. Now we know, this was a false and abusive approach. Men and women are part of the natural environment and they should not exclude environmentalist view of their Weltanshauung.
According to Subsection (5) of Section 27/ B of the Act No. LIX of 1993 on the Ombudsmen, the ombudsman of the future generations, i.e. the green ombudsman, is authorized to request damages to be versed in the State Budget (in the Fund of Environment Protection), unless the operator of the state property asks for damages from the perpetrator of the environmental damage within sixty days after having been notified by the ombudsman.
By virtue of Subsection (1) of Section 27/C of the Act on the Ombudsmen, the green ombudsman may demand from the perpetrator of an environmental damage to stop his or her damaging activity and also to restore the previous state of the environment. According to Subsection (3) of Section 27/H of the Act on the Ombudsmen, the environmental ombudsman is authorized to enter the premises where unrecoverable environmental damage is due to happen.
The green ombudsman has rights in the field of environment protection similar to those of the public prosecutor. It is an interesting point that the first green ombudsman of the Hungarian Republic had started his career as a public prosecutor, then became a civil rights lawyer, and attorney at law in environmental cases, before being elected ombudsman of the future generations. The environmental ombudsman's role in a criminal procedure, of course, differs from that of the public prosecutor. The institution of the green ombudsman is, first of all, a civil institution created to protect the citizens' rights with civil and public measures. The environmental obudsman is not a competitor of the pro bono civil organizations in the field, but a person supplied with fortified tools of law.
The protection of the environment for the future generations is an interest of each and every man and woman, as well as that of the people as a whole. It is never enough to make use of solely private law tools, or to invoke exclusively public law regulations: both are simultaneously needed. The public prosecutor and the environmental ombudsman are both important actors in the field of environment protection, nevertheless, all the other participants of the Hungarian society are also invited to protect their environment by all the possible means offered by laws.
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In a certain measure, the legislators were led by social ecology when creating the legal framework of the institution of an environmental ombudsman as "people's friend". People considering the public prosecutors as criminal investigators and accusers have been in need for a person legitimately and legally (i.e. by law) appointed to protect them and to protect their environment, including the natural and the civilizational environments alike.
Francis Bacon wrote in his Novum Organum, i.e. The New Instrument: "The sagaciousness of the nature always circumvents the human senses, so it is important to take into consideration the deficiency of the human brain."[3] Today's people can quite agree with the Baconian conception of the natural law. The men and women of present should, however, add to the Baconian conception that it should be extended to cover the field of positive law as well. The humble humanism of the Baconian philosophy is, though conceived in the first half of the 17th century, an example to be followed in the 21st century too. This humble humanism is the way of thinking of the humans accepting the greatness and importance of the environment that surrounds them. This also means the acceptance of mankind's realistic place within the natural environment that comprises the sociosphere, i.e. the human microworld. The role of the individuals is emphasized by the individualist functioning of the social relationships.
In addition to all the institutions mentioned in the preceding chapters, an individual, as defensor of public interests, involving his or her private interests too, may also do much for the people. The inhabitant, national or foreigner, may request a criminal procedure, he or she may also drive the attention of the public authorities to neuralgic points in the field of environment protection. All the same, an individual has the right to do something for the environment, let it be the natural or the civilizational one, on his or her expenses. In a word, the everyday man or woman has the right to turn his or her wage, chattels, property into the protection of the environment. Such actions must be based on personal and uninfluenced decisions, nonetheless, the true public weal may be highlighted by means of publicities, so as to concentrate the attention of the individuals to substantial values, like protecting the sphere of life and preserving the natural resources for tomorrow.
The future of our environment, including mankind itself, is vested in the brave people. Because people should be brave, though not in a Huxlian meaning of this adjective, so as to create a better future and to preserve the blue planet, up to now unique in the universe. Astronomers say that the Earth as a blue planet is just a passing moment in cosmic time. Maybe it is true. However, this moment is to be conserved for the upcoming descendants of today's people. Inheriting chattels and real estates is nothing as compared to inheriting a healthy environment, rich natural resources, and a political vocabulary filled with environmentalist congruence and compatibility of green ideas. Green thinking is an act of civilization in which the humans leave their past of wild animals and start to contemplate the temporal dimension not just in the present and in the past, but in the future too.
Montesquieu wrote in his The Spirit of the Laws in 1748: "As soon as the people start to live in a society, they stop feeling weak. There is no more egality among them, and war is commenced. Each and every society feels its own power, and this results in battles among the nations. Every individual starts feeling his or her own power too, so they tend to obtain the most possible profit from the social existence and this leeds to a war among them alike. The laws are produced thanks to these two kinds of wars."[4]
The actio popularis is not a sui generis Hungarian legal institution. People all over the world, including the developed and the less developed countries, make use of similar legal weapons. We may find the legal tool of environmental actio popularis in India, in Europe, as well as in many other lands. It is a landmark of democratization, so a characteristic (but not an absolute criterium) of a properly functioning society.
In reality, the actiones populares might differ in one country from those in other countries. It is the background philosophy, both legal and social philosophy, of the concerned country to shape its locally or nationally applied people's actions. The main point is to let people act for their compatriots. The most important philosophical standpoint is that of a partaking democracy. One of the greatest achievements of Roman law was the legalization of the right of individuals to partake in the common cases of a whole city (urbis), or of the whole world (orbis). The origin of similar partaking actions may be traced back to ancient Greek times, or even to the time of the Old Testament.
The actio popularis is still under development. With new aspects, new characteristics are also to be incorporated into this legal tool. The development
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of law brings development of the environmental law alike. The developed environmental law generates need for more developed tools of law. The actio popularis has been implied into the new Hungarian Civil Code to come into force on May 1st, 2010. It will be the second step on the way commenced by the codification of the environmental actiones populares in the 1990s. The Civil Code gives a special importance to this legal possibility. We assist to an inversed development of law in the field. It has been started on the level of simple acts of the Parliament, and now the actio popularis occupies its place in a higher law product too. We still have to wait for the constitutionalization of the institution of actio popularis, at least in Hungary.
It is not a must that we depart from the highest level of positive law. It is nothing else, but an usual way of law-making and legal development. The evolution of law may break the usual line and bring new perspectives for a law-using society. There must be some truth in the Montesquieusian theory quoted above, but the time of Montesquieu, as well as the legal thinking of his time are all over. Today's people do not mind if it is the positive law, or the lex naturalis to be called up. The main thing is to find practical and pragmatical legal solutions to the burning problems of renewable energy, environment-consciousness, keeping water, soil, and air clear, as well as preserving the nature and trying to make ameliorations in the field of environment and nature protection.
The collectivization of the inviduals' right to a healthy environment is deeply expressed by the legal device of environmental actio popularis. Morally, it is not the result, rather the will to create that is to be considered. In law, we prefer the results. The application of the actio popularis in Hungary, as well as in other countries, has been a success story. Similar institutions ought to be introduced into each and every legal system under the global "rule of law".
The individuals' right to protect the collectivities' environmental rights and the collectivization of the individuals' environmental rights are the two sides of the same medal. This success story is to be continued. Giving people democratic rights does not weaken the collective power of the people as a whole. The old dilemma of individualism and/or collectivism seems to be dissolved by the bravery of new people, disregarding outdated old notions and bringing a new way of environment-conscious thinking into the present social system. Bringing an actio popularis before court ought to be the right of each and every citizen, inhabitant, or environmentally concerned person, thus individualizing the right of the pro bono civil organizations and bringing everyday people to the level of the public defensors of the environmental rights. As a first step, all these in the domain of environment protection and of consumer protection. ■
NOTES
[1] Spinoza, Baruch: Ethics (Ethica Ordine Geometrico Demonstrata). Gondolat, Pécs 1979 (1677), p. 342.
[2] Plato: The State. Gondolat, Budapest, 1970 (4th century BC), pp. 194-199.
[3] Bacon, Francis: Novum Organum (The New Instrument). Lazi, Szeged 2001 (1620), pp. 56-57.
[4] Montesquieu, Charles-Louis de Secondat: The Spirit of the Laws (L'Esprit des Lois). Osiris-Attraktor, Budapest 2000 (1748), pp. 51-52.
Lábjegyzetek:
[1] The Author is a research fellow.
Visszaugrás
