The Italian constitutional reform of the environment: Legal and Philosophical considerations
On 8 February 2022, the Chamber of Deputies in Italy definitively approved, in second deliberation with a majority of two thirds of its members, the constitutional reform bill already approved by the Senate in double deliberation.
The reform includes 'the protection of the environment, biodiversity and ecosystems, also in the interests of future generations' among the fundamental principles of the Constitutional Charter (Article 9). Moreover, it is left to the legislator to establish the ways and forms of animal protection. Furthermore, the amendment of Article 41 limits the private economic initiative establishing that health and the environment are paradigms to be protected by economic activity.
The core of the reform relies on the purpose of the legislator to introduce a clear and strong protection of the environment. However, the notions of environment, ecosystem integrity, and health (on which the reform is based) are problematic, as they are conceptually difficult to define.
We will structure the article as follows. First, we will introduce Article 9, its modifications, and its new salient features. Second, we will similarly introduce Article 41. Lastly, we will present a reflection upon the difficulties of defining the concepts of ecosystem integrity and health and we will explain why this modification of the Constitution is relevant in the moral domain.
Focus on the ART 9 of the Italian Constitution
At the beginning of 2022, the Italian Constitution was subject to a historical modification.
The first 12 Articles have been reformed for the first time since 1948, and environmental protection was included among the fundamental principles that define the basic characteristics of the Italian constitutional system (republican form, democratic system, recognition of human rights, affirmation of the principle of equality, centrality of labour, connection with the international community for the promotion of peace). The Italian parliament approved a law that has a wider scope: the state must preserve ecosystems and biodiversities ‘in the interest of future generations’. This represents a completely innovative formulation in the constitutional text.
Article 9: The Republic shall promote the development of culture and scientific and technical research. It safeguards the natural landscape and the historical and artistic heritage of the Nation. It protects the environment, biodiversity and ecosystems, also in the interests of future generations. The law of the state regulates the ways and forms of animal protection.
The principle of environmental protection is broadly articulated and goes beyond the content of Article 117 of the Constitution, amended by the reform in 2001, that lists the protection of the environment, the ecosystem and the cultural heritage among the matters over which the State has exclusive legislative competence. Moreover, the amendment is in line with European legislation and the Charter of Fundamental Rights of the European Union that deals with environmental protection in Article 37: "A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development" .
The legislator has introduced a clear and strong protection of the environment . Since the purpose of the reform is that today the environment can be considered a primary constitutionally protected value. It is therefore a strong signal and a challenge for a greater responsibility that will make it possible to carry out more effective protective actions for health and quality of life, by establishing the environment as a right for everyone. In addition, it is the first time in the history of the Italian Constitution that we refer to the protection of animals, and consequently to the habitat of human beings and to the conservation of nature as a value in itself, through the introduction of a reservation of state law governing forms and methods. Nevertheless, one of the missed targets of the reform can be considered the lack of formal action in order to identify a clear parameter to take into action on public policy.
Focus on the ART 41 of the Italian Constitution
The protection of the environment finds a way to enter into the Italian Constitution also through the amendment of the art 41.
Article 41:Private economic initiative is free. It cannot be conducted in conflict with social utility or in a manner that could damage safety, liberty, human dignity health and the environment. The law determines appropriate planning and controls so that public and private economic activity is given direction and coordinated to social and environmental purposes.
Article 41 of the Italian Constitution is structured in three important parts: the first one establishes the principle of free economic activity giving everyone the freedom to start, run and end an economic activity; the second one is about its limitations; the third one sets out the ways public interventions may take place. The constitutional attempt is twofold: to eliminate any condition of privilege and to guarantee the full and free expression of the human being, creating all the necessary pre-conditions such as freedom from primary need, substantial equality and effective participation to social life . At the same time, private economic initiative is not unlimited and uncontrolled, but it is constitutionally conceived as operating within a grid of specific limits and policies set by the State in order to better introduce the goals of the economic system in the society .
The amendment of the article 41 limits the private economic initiative establishing that health and the environment are paradigms to be protected by the economy, as well as safety, freedom and human dignity. The same amended article also establishes how institutions, through laws, programs and controls, can steer public and private initiative, not only towards social purposes but also towards environmental ones. It renders the environmental principles a constitutionally qualified objective that must address and limit the political and administrative activity. Therefore, today, the Italian Constitution includes environmental responsibility and human health as limits for all economic activities, as well as the protection of the environment and its biodiversity on a broader spectrum.
Since today, the word “unconstitutional” has a new meaning; however, it is hard to imagine that environmental protection will become a higher value in the Italian constitutional jurisprudence [Ibid 3].We hope that those values will not remain only beautiful words written in the Italian Constitution but also real values that inspire the legislator and all the citizens from Italy and from all the other nations in the world that still not include this type of protection in their law-making.
Reflection upon the content of ecosystem integrity and health
The reform of the Italian Constitution highlights how crucial the notions of ecosystem integrity (article 9) and ecosystem health (article 41) are. On a purely theoretical level, these two notions (and, consequently, also the one of environment itself) are problematic to define. The legal domain well-reflects this difficulty, since ‘there is no commonly agreed definition of environment in international law’ . It only belongs to a general widespread common sense that the safeguard of the environment is essential for preserving the global equilibrium, the means to achieve this safeguard however are not easy to find. In fact, there are no objective criteria to define what ecosystem integrity and health are and where the border between these two notions is. In general, we affirm that an ecosystem possesses integrity when it is intact, i.e. it is able to preserve internal optimal operations, to self-organise, to maintain its ‘conditions as free as possible from human intervention’ and to withstand anthropocentric stresses upon the environment . Nevertheless, an ecosystem can have these properties even though it is human-managed. For this reason, we shall distinguish between ecosystem integrity and health (ibidem). An ecosystem can be healthy even if it is widely managed by people, but it possesses integrity only if it is wild (i.e. free from any human intervention). Nevertheless, this distinction is flawed, as today the interaction between human and environment is intense and complicated. This is the case, for instance, of an ecosystem that is inhabited by humans (as they are an intrinsic part of nature). According to the definitions provided, such an ecosystem might be healthy but not intact, as its integrity is violated by the presence of humans. However, such a definition of integrity would be practically useless, because what we want is a definition of integrity that is able to regulate the relation between an ecosystem and the humans who live in it. But such a definition would be subjective, as it is problematic to find a precise criteria for distinguishing cases in which there was a factual violation of integrity from case in which the ecosystem was simply not able to cope with anthropocentric stress. This lack of objectivity might render the environmental regulations difficult to make. In fact, it seems pretty intuitive that we cannot claim, for instance, that there has been a violation of integrity if we are not previously able to define what integrity is. Moreover, someone could also claim that, in light of these problems, this definitional fleeting implies that environmental integrity and health cannot be respectable ecological concepts.
Nonetheless, even accepting as true what has been just explained, this lack of objectivity does not necessarily entail that we have to give up pursuing our purpose, i.e. the safeguard of the environment. Notwithstanding their flaws, integrity and health are not undermined in their importance. Albeit there are no objective criteria to define what a violation of integrity or health is, we can find other relevant criteria by giving voice to the widespread moral intuition according to which, roughly said, “it is wrong to violate the environment”. In other words, criteria for the definition of environmental integrity and health can be found in our perception of the environment, that is how we feel the environment (and our interaction with it) should be. The same ratio was used for defining the concepts of human integrity and animal integrity. Even though a notion is flawed (or not objective) it can still be workable. This led to the modification of the 9th and the 41st articles of the Italian Constitution, which are the litmus test of the widely spread moral intuition that the preservation of the environment is crucial to assure a future to the next generations.
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 The procedure to amend the Constitution is described by art.138 Cost: “Laws amending the Constitution and other constitutional laws shall be adopted by each House after two successive debates at intervals of not less than three months, and shall be approved by an absolute majority of the members of each House in the second voting. Said laws are submitted to a popular referendum when, within three months of their publication, such a request is made by one-fifth of the members of a House or five hundred thousand voters or five Regional Councils. The law submitted to referendum shall not be promulgated if not approved by a majority of valid votes.A referendum shall not be held if the law has been approved in the second voting by each of the Houses by a majority of two-thirds of the members”. See the modification of the Articles 9 and 41 of the Constitution, A.C. 3156, June 23, 2021, https://documenti.camera.it/Leg18/Dossier/Pdf/AC0504.Pdf.
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About the authors
Natascia Arcifa is a law graduate with experience in corporate management and communication. She is specialist in human rights and ethical-legal aspects of new technologies. She is the coordinator of a young European network that promotes active citizenship in collaboration with the European Parliament, and a travel and art lover.
Paride Del Grosso graduated with a bachelor’s degree in Philosophy at University of Trento and a master’s degree in Philosophy of Science at the London School of Economics. He considers himself intrinsically sceptical but always open to new potential alternatives. He loves cinema, theatre and art.
Federica della Monica is a lawyer, specialised in corporate affairs and intellectual property, now working in the legal corporate affairs direction of an Italian company operating in the area of digital payments. She graduated with honours in law and is passionate about politics, human rights, and sustainability, and curious about blockchain and NFTs.