Research Methods in Environmental Law
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Research Methods in Environmental Law

A Handbook

Edited by Andreas Philippopoulos-Mihalopoulos and Victoria Brooks

This timely Handbook brings innovative, free-thinking and radical approaches to research methods in environmental law. With a comprehensive approach it brings together key concepts such as sustainability, climate change, activism, education and Actor-Network Theory. It considers how the Anthropocene subjects environmental law to critique, and to the needs of the variety of bodies, human and non-human, that require its protection. This much-needed book provides a theoretically informed analysis of methodological approaches in the discipline, such as constitutional analysis, rights-based approaches, spatial/geographical analysis, immersive methodologies and autoethnography, which will aid in the practical critique and re-imagining of Environmental Law.
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Chapter 10: The methodology of environmental constitutional comparison

Francois Venter and Louis J Kotzé

Abstract

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.

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