The essay is based on the assumption that it would be necessary to strengthen and update the comparison between Environmental Law and Ecology. They are two sciences intimately linked but still wary of each other. A review of the international literature shows that Ecology has developed a process of dialogue and cultural integration not only with Life and Earth Sciences, but also with Social and Human Sciences, within transdisciplinary research platforms variously known as «Environmental Science», «Earth System Science», «Science of Earth Stewardship» or «Sustainability Science». Ecology has deeply evolved by going beyond its own disciplinary boundaries, and integrating information resources from multiple disciplines. It has produced fundamental changes: particulary, the «Planetary Boundaries» theory and the concept of «Social-Ecological Systems» are becoming central topics in contemporary ecological research. Recently, Ecology by collaborating with other environmental sciences is facing a further challenge, that is very interesting for legal scholars: the redefinition of «sustainable development» based upon new scientific foundations. All that orients Ecology towards Environmental Law. On the other hand, a review of the international literature shows that Environmental Law is increasingly moving towards Ecology, too. In fact, some legal scholars are trying to derive ‘ecolegal’ principles through an evolutionary interpretation of environmental legal norms at international, EU and comparative constitutional level: e.g., the principles of «non-regression», «resilience», «ecological integrity», «ecological proportionality», «ecoscape restoration». These ‘ecolegal’ principles have the force of Law but, at the same time, are able to incorporate into themselves theoretical advances in Ecology. More ambitiously, some legal scholarship is proposing to explore the possibility of building a «new Law» based on systematic, integrated and comprehensive understanding of «social-ecological systems»; to rethink the idea of rule of law, which could evolve into «ecological rule of law» or «rule of law for nature»; to introduce the legal concept of «ecological public order». According to other opinions, Environmental Law and Environmental Science are co-evolving in a law-science process that is continually in flux. Emergent properties occur at the interface, i.e. unexpected features that stem from interaction between law and sciences: neither science nor law, taken separately, could achieve these properties. The essay highlights that the orientation of Law towards Ecology is also evidenced by legal acts, such as the recently-agreed 7th EU Environment Action Programme (EAP) 2013-2020 (Decision no. 1386/2013/EU of the European Parliament and of the Council of November 20, 2013); the7th EAP is significantly entitled «Living well within the limits of our planet» and is grounded precisely on the recent «Planetary Boundaries» theory. In light of this new context, questions need to be asked concerning whether Italian Law could be compatible with an Ecology-oriented Environmental Law. In this regard, the Italian law seems to be suitable for allowing a cross-fertilization between Environmental Law and Ecology. One needs only to consider the legal protection of «one or more ecosystems» in Italian Law no. 394 of December 6, 1991 (Framework Law on Protected Areas); the legal protection of «ecosystem» in Art. 117 of the Italian Constitution, as amended in 2001; the principle of «sustainable development in order to safeguard the proper functioning and evolution of natural ecosystems» in Art. 3-quater of the Legislative Decree no. 152 of April 3, 2006, also known as the Environmental Code, as amended in 2008; the ecosystem approach to legal definitions that is emerging in some recent Italian case-law. In conclusion, the essay provides a perspective for an ecologically oriented interpretation of «natural protected areas» in Italian Law no. 394 of December 6, 1991.
Per una «nuova alleanza» tra diritto ed ecologia: attraverso e oltre le «aree naturali protette»
MONTEDURO, MASSIMO
2014-01-01
Abstract
The essay is based on the assumption that it would be necessary to strengthen and update the comparison between Environmental Law and Ecology. They are two sciences intimately linked but still wary of each other. A review of the international literature shows that Ecology has developed a process of dialogue and cultural integration not only with Life and Earth Sciences, but also with Social and Human Sciences, within transdisciplinary research platforms variously known as «Environmental Science», «Earth System Science», «Science of Earth Stewardship» or «Sustainability Science». Ecology has deeply evolved by going beyond its own disciplinary boundaries, and integrating information resources from multiple disciplines. It has produced fundamental changes: particulary, the «Planetary Boundaries» theory and the concept of «Social-Ecological Systems» are becoming central topics in contemporary ecological research. Recently, Ecology by collaborating with other environmental sciences is facing a further challenge, that is very interesting for legal scholars: the redefinition of «sustainable development» based upon new scientific foundations. All that orients Ecology towards Environmental Law. On the other hand, a review of the international literature shows that Environmental Law is increasingly moving towards Ecology, too. In fact, some legal scholars are trying to derive ‘ecolegal’ principles through an evolutionary interpretation of environmental legal norms at international, EU and comparative constitutional level: e.g., the principles of «non-regression», «resilience», «ecological integrity», «ecological proportionality», «ecoscape restoration». These ‘ecolegal’ principles have the force of Law but, at the same time, are able to incorporate into themselves theoretical advances in Ecology. More ambitiously, some legal scholarship is proposing to explore the possibility of building a «new Law» based on systematic, integrated and comprehensive understanding of «social-ecological systems»; to rethink the idea of rule of law, which could evolve into «ecological rule of law» or «rule of law for nature»; to introduce the legal concept of «ecological public order». According to other opinions, Environmental Law and Environmental Science are co-evolving in a law-science process that is continually in flux. Emergent properties occur at the interface, i.e. unexpected features that stem from interaction between law and sciences: neither science nor law, taken separately, could achieve these properties. The essay highlights that the orientation of Law towards Ecology is also evidenced by legal acts, such as the recently-agreed 7th EU Environment Action Programme (EAP) 2013-2020 (Decision no. 1386/2013/EU of the European Parliament and of the Council of November 20, 2013); the7th EAP is significantly entitled «Living well within the limits of our planet» and is grounded precisely on the recent «Planetary Boundaries» theory. In light of this new context, questions need to be asked concerning whether Italian Law could be compatible with an Ecology-oriented Environmental Law. In this regard, the Italian law seems to be suitable for allowing a cross-fertilization between Environmental Law and Ecology. One needs only to consider the legal protection of «one or more ecosystems» in Italian Law no. 394 of December 6, 1991 (Framework Law on Protected Areas); the legal protection of «ecosystem» in Art. 117 of the Italian Constitution, as amended in 2001; the principle of «sustainable development in order to safeguard the proper functioning and evolution of natural ecosystems» in Art. 3-quater of the Legislative Decree no. 152 of April 3, 2006, also known as the Environmental Code, as amended in 2008; the ecosystem approach to legal definitions that is emerging in some recent Italian case-law. In conclusion, the essay provides a perspective for an ecologically oriented interpretation of «natural protected areas» in Italian Law no. 394 of December 6, 1991.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
