4.1. Constitutionalism: Content, Limits and Changes

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Sustainability, which was once only thought of as a policy objective, has developed into a prominent normative claim – a ‘central’ claim that increasingly demands constitutional recognition. Understanding the constitutional and legal relations to sustainability requires a reimagining of constitutionalism per se; this reimagining is not just a matter of institutional reform but also calls for a normative and theoretical shift. Much of constitutional theory rests on human rights. Yet sustainability challenges this anthropocentric bias.1 Under the attitude of anthropocentrism, the natural environment is treated as a backdrop for human activity, not a subject of legal concern. Nevertheless, the environment is not only instrumental to human well-being; it possesses intrinsic value and systemic agency. The answer to this phenomenon comes from the classical, traditional constitutionalism which was forged in the Enlightenment and liberal revolutions of the 18th century, and is rooted in values of individual autonomy, limited government, and separation of powers.2 Its animating concern is to protect negative freedoms against arbitrary power and to establish the rule of law. It succeeded in securing essential civil and political rights, yet it largely neglected ecological realities. The environment was considered by law as external, as a passive resource rather than an active subject needing protection or recognition. The anthropocentric basis, along with the temporary short-sightedness of legal cycles and electoral timeframes that meant traditional constitutional mechanisms were ill suited to address long-term, systemic issues with environmental degradation and climate change. In the context of anthropocentrism, the rights and obligations are in the present time, considering only the immediate, with little regard to longer-term consequences to the environment (temporal myopia).3 The economic development is often constitutionally protected without ecological qualifications (resource extractivism).

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To address this conceptual deficit, scholars and legal theorists have proposed an ecological turn in constitutional thinking. Ecological constitutionalism reframes constitutions as instruments not only of state formation and rights protection but of environmental stewardship.4 It rests on three foundational claims: that human life is ontologically embedded in ecosystems and thus cannot be governed separately from them; that future generations and non-human entities possess moral and possibly legal claims; and that enduring legal structures are required to correct the short-term biases of political and economic systems. Sustainability ought to be reframed, in this way, not as one value among many but as a constitutional meta-principle. Such a principle does not operate as a particular rule or enumerated right, but rather, as a normative principle that guides, organises, and hierarchises constitutional theory: all substantive environment norms, procedural norms - including transparency and public participation - and a temporal dimension - including precautionary principles and inter-generational equity, comprising multiple sorts of human rights. Its vital role is to ensure that economic growth and social development do not occur at the expense of the ecological conditions resourcing constitutional democracy and accompanying human rights.

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Modern constitutional orders also face the challenge of dealing with pluralism.5 All national constitutional orders need to take account of the multitude of higher norm constitutional orders—also known as supranational law—and subsidiarity-based legal orders. For example, there is increasing communication about how national law interacts with and persists through indigenous legal orders. Similarly, the competing demands from international environmental norms and agreements create legal pluralism, which requires coordination and mutual recognition, particularly regarding ecological matters that exceed geographical land borders. The ideal of a green constitutional state appears here—not simply as a state that regulates the pollution of its citizens or a guardian of environmental rights, but as an institutional agent of ecological transformation.6 Its constitutional values aspire toward constitutional bulk and vibrancy, its legal commitments as core elements of its law, its institutional procedures which exalt ecological science as part of their procedures of decision-making, and finally, its commitment to enabling citizens meaningful opportunity to participate in democratic governance of the environment.

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At the extreme end of these developments lies a more radical theoretical proposition: the rights of nature. Some constitutions (Ecuador and Bolivia, for example) have gone beyond human-centred rights discourse and recognised ecosystems as legal subjects with a right to exist, regenerate, and even bring court actions. This post-human constitutional thinking destabilises the anthropocentrism of classical law and instead offers a relational ontology where rivers, forests, and animals are given (legal and moral) agency. Such innovations indicate not just ecological awareness, but frequently draw from indigenous cosmologies, where nature is not treated as property, but as relatives. Therefore, providing legal standing to nature becomes an act of epistemic and cultural possibility that aligns constitutional law with other world views and environmental ethics.

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The most conceptually difficult aspect of sustainability may be its relationship to time. Legal systems tend to be reactive,7 focusing on providing immediate remedies and rights. Sustainability, however, is about protecting the conditions of life over time. The time-orientation of constitutional law must, thus, be altered: from short-term rights to consideration of long-term responsibility, from emergency actions to future-oriented care. This alteration might require new institutions (such as an ombudsperson for future generations, a constitutionalized prior environmental assessment, intra-generational impact audit, etc.). It also necessitates rethinking constitutional amendment procedures to ensure they are responsive to ecological thresholds and planetary boundaries.
 
1 Tiisala, K. (2022). Sustainability and Moral Standing: From Anthropocentric Speciesism to Sentiocentrism. University of Helsinki URL: https://helda.helsinki.fi/items/4e774f01-5690-433b-b5fd-5bd2880e4975/full
2 Loughlin, M. (2022). Against constitutionalism. ((Cambridge, MA:Harvard University Press). 240. ISBN 9780674268029; Pojanowski, J. A., & Walsh, K. C. (2022). Recovering Classical Legal Constitutionalism: A Critique of Professor Vermeule's New Theory. [Book review]. Notre Dame Law Review, 98(1) 403-462.
3

Droz, L. (2022). Anthropocentrism as the scapegoat of the environmental crisis: A review. Ethics in Science and Environmental Politics22(1), 25-49.;

Kopnina, H., Washington, H., Taylor, B., & Piccolo, J. (2021). Anthropocentrism: More than Just a Misunderstood Problem. The International Journal of Ecopsychology (IJE)3(1), 4.

4

Potapchuk, A. (2022). Ecological Consciousness as a Basis of Ecological Constitutionalism. Law Rev. Kyiv UL, 81.

Collins, L. (2021). The ecological constitution: reframing environmental law. (London:Routledge) 140. eBook ISBN: 9780429277320 DOI: https://doi.org/10.4324/9780429277320

5 Pascual, U., Adams, W. M., Díaz, S., Lele, S., Mace, G. M., & Turnhout, E. (2021). ‘Biodiversity and the challenge of pluralism.’ Nature Sustainability4(7), 567-572.
6 Da Silva, V. P. (2022). ‘Green Constitution. The Right to the Environment.’ In: Encyclopedia of Contemporary Constitutionalism  (Cham: Springer International Publishing). 1-19. Print ISBN: 978-3-319-31739-7 Online ISBN: 978-3-319-31739-7 DOI: https://doi.org/10.1007/978-3-319-31739-7_160-1
7 Carvosso, R. (2021). The reactive model of disaster regulation in international law and its shortcomings. Leiden Journal of International Law34(4), 957-976.
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