Venter, Francois; Kotzé, Louis J --- "The methodology of environmental constitutional comparison" [2017] ELECD 1451; in Philippopoulos-Mihalopoulos, Andreas; Brooks, Victoria (eds), "Research Methods in Environmental Law" (Edward Elgar Publishing, 2017) 237

Book Title: Research Methods in Environmental Law

Editor(s): Philippopoulos-Mihalopoulos, Andreas; Brooks, Victoria

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781784712563

Section: Chapter 10

Section Title: The methodology of environmental constitutional comparison

Author(s): Venter, Francois; Kotzé, Louis J

Number of pages: 28

Abstract/Description:

As the world is sliding deeper into a profound global socio-ecological crisis, humanity must innovatively rethink ways to use its regulatory institutions, such as law, in an effort to mediate this crisis. To this end, convincing arguments are emerging in favour of constitutionalising environmental protection and the domestic and international legal and political systems that are aimed at environmental protection. Environmental constitutionalism has recently emerged as a term of art explicating juridically elevated environmental protection through constitutions. In this chapter we argue that, while an important paradigm in itself, environmental constitutionalism, both as a concept and framework in an analytical sense and as a normative programme, can greatly benefit from a comparative approach that would seek to enrich it. A comparative approach to environmental constitutionalism, including the methodologies that carry such a comparison, could augment environmental constitutional protection in specific countries and globally through trans-jurisdictional processes of cross-pollination. The chapter first reflects on the meaning and value of constitutionalism and constitutional comparison (section 2); moving on to explore in more detail environmental constitutionalism and its emergence (section 3). In section 4, we describe comparative environmental constitutionalism and provide a selection of considerations that could form part of the environmental constitutionalism comparatist's tertium comparationis. These considerations are generally representative of the (often overlapping) elements of the contemporary constitutional state and include: the rule of law, the separation of powers doctrine, judicial independence and review, constitutional supremacy, democracy, and rights. Throughout, we provide insights into the importance of environmental constitutionalism as a methodological approach.