Special Workshop Abstract

As far as Habermas in concerned, you will find an important barrier when trying to change people’s behaviour through legislation in fields where it is vital for the citizens to be able to influence their own life, basing on their own norms and values.

The effect of such rules can be illustrated by an example taken from the Danish sociologist Thomas Højrup. In his book Det glemte folk (The Forgotten People) Højrup describes how the Danish Parliament has passed an act on prohibition of certain forms of fishing, from a praiseworthy interest in protecting the fish stock, and how this act in actual fact—but unintentionally—means criminalization of a specific way of life which for a long time has been the natural one for a specific section of the population. Consequently, these people considered the act as an intolerable encroachment, which resulted in a large-scale protest movement and an undermining of the legitimacy of both law and state.

Højrup and Habermas thus agree that much modern legislation affects some fields where it is important that the statutory regulation is elaborated in consideration of the existing informal norms. Otherwise, the destructive effects of such encroachment will largely overshadow the positive results.

Boaventura Santos is interesting in the relation to environmental law because he questions the normal view of law as a unity. When regarding law as a unity, normally in the shape of coherent national legal systems and especially dealing with legislation, you can be said to have a view of law being fit for regarding law as an instrument ela­borated by politicians in order to solve the problems in society or in the environment. But according to Santos, who is one of the most outstanding representatives of a legal-pluralistic conception, this unity is only apparent, because the contents of law can be considered from many different angles, none of which is more correct than the others.

Consequently, you can consider law from a global, a national or a local point of view, and depending on the point of view you will find very different sorts of law, all of which influence the way in which legal matters have to be comprehended in a concrete situation. Accordingly, an interaction among different forms of law—international law, national law and local law—is of common occurrence, and it is impossible for the indi­vidual citizen or for the national legislator to predict the result of such interaction.

In my opinion, Santos’ conception of law has a very great explanatory power with regard to the legal matters that you will often be confronted with nowadays, espe­cially within environmental law.