Positive Positive Law: a Dworkinian Move in Dutch Environmental Law

This paper starts with the practice of spatial development, and with legal practice, to come up with three reasons why a new environmental act is necessary. The Dutch legislature is working on that these years and in its commission we’ve been looking for change within environmental law. Our first step is to use the principles of law to move away from the current dominance of written law. Second step is to introduce the possibility to trump written law with the principles of the law, because that’s not permitted within Dutch law at this moment. We bring this as a positive bonus: only the initiator of a project that enhances the quality of the environment, may ask to put aside a written rule.

The principles of law are here to help justify the decision to put aside a written rule. To enhance this we take our third step: we introduce the principle of positive proportionality. With that we put emphasis on the interests that will benefit from a project. We think that both the positive bonus and benefits should be part of legal reasoning since they can balance the right decision. This brings us to the thesis of positive positive law that gives benefits a place in legal argumentation. To argue for this we will make use of the work of Ronald Dworkin. We end with our suggestion for a set of rules for the New Environmental Act.