Abstract
Although there is no independent discipline of Islamic environmental law, Islamic law is proclaimed as a source of the legal system in the constitutions of Muslim countries. Thus, we can find in Islamic law a theoretical and practical foundation for environmental law. All sources of Islamic law can be used for this purpose as they all have a potential ecological application. This chapter explores the sources of Islamic law in order to find avenues to Islamic environmental law. In this regard, it analyzes its potential sources and paradigms. Then according to results of these analysis general Islamic principles introduced with a comparative view over the globally accepted environmental law. These general principles can be used in those countries with Islamic jurisprudence as a reference to improve their environment conservation lawmaking.
TopIntroduction
In the 1960s, the world witnessed a huge public awareness regarding environmental issues(Tortell, 2020). This awakening is due to the factors such as the publication of Rachel Carson's book entitled “Silent Spring” which is related to the use of Dichlorodiphenyltrichloroethane (DDT) Pesticide, and the International Convention on Trade in Endangered Species was established in 1963, the United Nations Environmental Conventions, the Nuclear Non-Proliferation Law in 1968, etc. In the 1970s, earth-loving and green peace groups were formed(Meyer, 2021). After three decades of the activity of these groups and other non-governmental organizations in North America and Europe, especially in the development of legislation and standardization for corporate social and environmental issues, it found a global concept for the first time in the mid-1970s, and in fact the first official world meeting on environmental protection was held in Stockholm in 1972 (Trivedi, 2019). In 1992, the Earth Summit on sustainable development was held in Rio de Janeiro, Brazil (by the United Nations) and eventually led to the issuance of the Rio Declaration by the leaders of Rio. This declaration was a treaty framework on climate change, a treaty framework on biodiversity, the establishment of the World Bank's environmental aid fund, the equipping of global environmental facilities, and 21 programs for implementation (Abdillah et al. 2020, Miller et al. 2020).
It has been more than thirty years since discussions related to religion and the environment have received attention in scientific and specialized circles. Many environmentalists now believe that environmental policies should not only be comprehensive, but such policies need the support of religious and moral culture in their implementation, which are the basis of environmental protection (Abdillah et al. 2020). In such a situation, examining religion's view of the environment becomes doubly important. In order to understand the place of the environment in the system of religious teachings, it is possible to consider a fourfold division of all human relationships, the relationship between man and God, the relationship with oneself, the relationship between man and other humans, and the relationship between man and nature (Smith & Veldman, 2020). How humans interact with nature and natural resources, water, soil, air, forest, animals, etc., is defined in the fourth field of human relations, and the rulings of these relations are explained in the jurisprudential view of this field (Soleymani, 2019, Hancock, 2019).
Key Terms in this Chapter
Public Participation and Transparency: identified as necessary conditions for “accountable governments,... industrial concerns,” and organizations generally, public participation and transparency are presented by UNEP as requiring “effective protection of the human right to hold and express opinions and to seek, receive and impart ideas,... a right of access to appropriate, comprehensible and timely information held by governments and industrial concerns on economic and social policies regarding the sustainable use of natural resources and the protection of the environment, without imposing undue financial burdens upon the applicants and with adequate protection of privacy and business confidentiality,” and “effective judicial and administrative proceedings.” These principles are present in environmental impact assessment, laws requiring publication and access to relevant environmental data, and administrative procedures.
Equity: Defined by UNEP to include intergenerational equity - “the right of future generations to enjoy a fair level of the common patrimony” - and intragenerational equity - “the right of all people within the current generation to fair access to the current generation’s entitlement to the Earth’s natural resources” - environmental equity considers the present generation under an obligation to account for long-term impacts of activities and to act to sustain the global environment and resource base for future generations. Pollution control and resource management laws may be assessed against this principle.
Polluter Pays Principle: The polluter pays principle stands for the idea that “the environmental costs of economic activities, including the cost of preventing potential harm, should be internalized rather than imposed upon society at large.” All issues related to responsibility for environmental remediation costs and compliance with pollution control regulations involve this principle.
Transboundary Responsibility: Defined in the international law context as an obligation to protect one’s environment and prevent damage to neighboring environments, UNEP considers transboundary responsibility at the international level as a potential limitation on the sovereign state’s rights. Laws that limit externalities imposed upon human health and the environment may be assessed against this principle.
Prevention: The concept of prevention can perhaps better be considered an overarching aim that gives rise to a multitude of legal mechanisms, including prior assessment of environmental harm, licensing or authorization that set out the conditions for operation and the consequences for violation of the conditions, as well as the adoption of strategies and policies. Emission limits and other product or process standards, the use of best available techniques, and similar techniques can all be seen as applications of the concept of prevention.
Precautionary Principle: One of the most commonly encountered and controversial principles of environmental law, the Rio Declaration formulated the precautionary principle: To protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of complete scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. The principle may play a role in any debate over the need for environmental regulation.