Sviluppo sostenibile, legge morale e legalità per la difesa del patrimonio culturale paesaggistico
10.6092/issn.1973-9494/7175
Mossi dall’appello urgente di Papa Francesco a proteggere la casa comune affrontando la sfida ambientale e le sue radici umane con la ricerca dello sviluppo sostenibile ed integrale, gli autori profilano la ricognizione storico-normativa ed istituzionale della tutela e valorizzazione del patrimonio culturale-paesaggistico-ambientale, matrice del progresso di civiltà delineato tra i principi fondamentali della Costituzione italiana nel “Programma culturale” unitariamente incentrato sul rapporto uomo-cultura ed uomo-ambiente. Ricordano l’azione delle istituzioni per la preservazione della natura e degli equilibri ecologico-ambientali e l’attività delle Organizzazioni internazionali per la preservazione della natura dall’azione umana. Segnalano le criticità delle codificazioni nel campo dei beni culturali, del paesaggio e dell’ambiente (2006-2009), dovute all’allontanamento dallo jus naturale quale norma morale della fruizione compatibile con l’uso amorevole, responsabile e prudente, atto a garantirne lo sviluppo sostenibile integrale per le generazioni future. Riscontrano, nello smarrimento della legge morale naturale, l’elemento determinante della caduta della legalità, che determina gravi conseguenze per la tutela dei beni e per la crescita delle persone secondo canoni condivisi. Ravvisano qualche spiraglio di speranza nella normativa comunitaria volta all’armonizzazione della tutela e della valorizzazione ambientale secondo criteri di legalità sostanziale, ove le finalità primarie per la garanzia delle generazioni future inducono a processi normativi ancorati all’etica della legge morale naturale, sotto il baluardo della leale collaborazione e della buona fede, in un sistema giustiziale e sanzionatorio severo, temperato dal ricorso all’equità quando prevalga l’interesse generale del bene comune.
application/pdf
1973-9494
7175
en
Giovanni Cogo
Conservation Science in Cultural Heritage
valorization
Sustainable Development, Moral Law and Legality in Defense of Cultural and Landscape Heritage
Text.Serial.Journal
https://conservation-science.unibo.it/
16
Articles
2017-07-24
2017-07-18
2017-07-24
2017-09-04
325-355
CSCH
Giovanni Cogo
2016
10.6092/issn.1973-9494/7175
325
Studio Legale Cogo, Rome
1973-9494
valorization
en
355
Vettori, V.A. (2014) Un nuovo programma generale d’azione dell’Unione in mate- ria di ambiente fino al 2020. Riv. Giur. Amb., 2.
Sustainable Development, Moral Law and Legality in Defense of Cultural and Landscape Heritage
https://conservation-science.unibo.it/article/download/7175/6908
16
S    USTAINABLE DEVELOPMENT, MORAL LAW AND LE-
     GALITY IN DEFENSE OF CULTURAL AND LANDSCAPE
     HERITAGE

   Giampaolo Maria Cogo and Giovanni Cogo*12
   Studio Legale Cogo
   Rome, Italy


   Keywords: cultural and landscape heritage, sustainable development, valorization


   1. An opportunity to reflect on the urgent challenge of managing integral
      sustainable development.

   The “Laudato Si”1 induces one to reflect on the situation regarding human resourc-
es, public institutions and individuals working in the field of the environment and pro-
tection of the land, with reference to disciplines objectively involving issues relating to
environment, cultural heritage and territory, unique material evidence of the value of
civilization.
   They constitute the matrix for the “cultural program” outlined in the fundamental
principles of the Italian Constitution (Art. 9) and focus on the significance of the human-
culture and human-environment relationship. In this regard, the Republic is solemnly
committed to promoting the development of culture and scientific and technical re-
search.... and to protect Italy’s landscape and historical and artistic heritage [1].
   Knowledge of environmental issues have highlighted the interdependence between




                                                                                                            CONSERVATION SCIENCE IN CULTURAL HERITAGE
territorial structures shaped by human activities and the multiplicity of historical and
artistic finds, summed up in testimonies conferring civilization with a particular value.
The synthesis of these testimonies make up the historical-artistic and environmental
heritage that differentiates individual communities, an intangible heritage to defend
that involves the promotion and valorization of the essential components of the rela-
tionship between humans, nature and territory from which derives the notion of the
environment as “ubi consistam” [2-7].
   It is interesting to note that even at the dawn of the 1900s, in the field of protection
and valorization, the attention given to landscape, and unconsciously to the environ-
ment, centred mainly on legislative aspects relating to the use and containment of
public and private waters, the development of irrigation channels, the reclamation of
sites in unsanitary conditions, the exploitation of water resources for the production of
energy and the construction and maintenance of highway and railway networks.
   In urban centers municipal building regulations were applied with health and sani-
tary provisions for residential areas and road, public order and cemetery services.
   One particular case that stood apart was the special law for the urban recovery of
the city of Naples, characterized by the programming of public intervention.


* Giovanni Cogo edited sections 1., 2., 3. - Giampaolo Maria Cogo edited sections 4., 5., 6. and 7.
Corresponding authors: gmcogo@tiscali.it – cogogiovanni@tiscali.it


                                                                                                      325
                                                                                                                         Environmental issues were merely viewed as a vaguely defined notion of the terri-
                                                                                                                      tory and linked for the most part to the exploitation of agricultural property under the
G.M. Cogo, G. Cogo - Sustainable development, moral law and legality in defense of cultural and landscape heritage




                                                                                                                      rules of private law.


                                                                                                                         2. History of the protection and valorization of cultural-environmental-
                                                                                                                            landscape heritage in the synthesis of land preservation

                                                                                                                           An interest in the value of the environment began to take shape in the laws on cul-
                                                                                                                      tural heritage which codified the start of public interest, the obligation to preserve and
                                                                                                                      the instrumental power of the government to protect and valorize art objects of histori-
                                                                                                                      cal and archaeological interest, together with monuments and buildings2.
                                                                                                                           Later (1912), the protection of villas, parks, gardens and sites of “natural beauty”
                                                                                                                      and “scenic beauty” were included among the heritage and objects subject to the pro-
                                                                                                                      tection and enhancement by the government in the legislation on cultural heritage and
                                                                                                                      activities in the years from 1939-1940.
                                                                                                                           As a corollary, the first nature parks for the protection of flora and fauna and bio-
                                                                                                                      diversity were instituted3, which then led to a “cultural program” being outlined in the
                                                                                                                      basic principles of the Constitution (Art. 9). It focused primarily on the significance of
                                                                                                                      the relationship between people and culture, and people and environment, obliging the
                                                                                                                      Republic to promote the development of culture and scientific and technical research
                                                                                                                      .... and to safeguard the landscape and the historical and artistic heritage of the nation4.
                                                                                                                           Based on this unified vision of cultural and environmental heritage, a series of stud-
                                                                                                                      ies and investigations followed during the period from the fifties to the seventies. They
                                                                                                                      were carried out by government commissions (Franceschini, Papaldo, Chigi and Fan-
                                                                                                                      fani) whose contributions in the field of nature conservation and its resources, as well
                                                                                                                      as the protection of the compatible ecological balance of the environment and the
                                                                                                                      atmosphere, took into consideration a more structured concept of environment, which
                                                                                                                      could even be described as differential compared to the original idea of cultural value.
                                                                                                                           Since then, despite the institution of the single Ministry of Cultural and Environ-
                                                                                                                      mental Heritage (1974), the environment has been seen not only and not so much as
                                                                                                                      landscape cultural heritage shaped by human action, but rather as an area surround-
                                                                                                                      ing urban settlements and activities, to be defended and valorized against possible
                                                                                                                      factors of aggression (upheavals, pollution and destruction) and so increasingly sub-
                                                                                                                      ject to regulations, both supranational and international, in all matters pertaining to the
                                                                                                                      environment [8-10].


                                                                                                                         3. The activities of international organizations in the 70s and 80s to protect
                                                                                                                            nature from human actions.

                                                                                                                         In fact, between the 70s and 80s, international organizations were busily engaged
                                                                                                                      in preserving and protecting nature and defending the environment from human ac-
                                                                                                                      tions, repeatedly codified and acknowledged in the governmental statements of the
                                                                                                                      participating countries [11-13].
                                                                                                                         In addition to planning commitments, this prompted the European Union and Italy
                                                                                                                      into adopting regulations and directives and implementing them by paying particular
                                                                                                                      attention to the protection and enhancement of natural resources and landscapes, as
                                                                                                                      well as the safeguard of the environment, with increasingly stringent provisions for


                                                                                                                326
conformity in human activities aimed at preventing environmental disasters and pollu-
tion beyond the limits of compatibility by means of a combination of permits, inspec-
tions, sanctions and reconstitutive actions [14-16].
    After a decade, the specific nature of government action for the protection, pres-
ervation and enhancement of the environment resulted in responsibilities related to
environmental issues being separated from the functional system originally attributed
to the Ministry of Cultural and Environmental Heritage [17].
    Hence, the Ministry of the Environment was created in 1986. It then became (1999-
2006) the Ministry of the Environment and Protection of Land and Sea. Both names
evidently reflect the evolution of environmental guidelines.
    It must also be said that the latter was never separated from the provisions regard-
ing the use of the territory and urbanism, leaving the intricate web of responsibility
existing between local authorities, regions and central government unresolved and
which extended, at a regional level, to include duties relating to the protection and
valorization of landscape with cultural value [18-19].


   4. The crushing of skills and the conflict between institutions

    The complicated division and confusion of responsibilities at all levels of govern-
ment led to the extreme difficulty, if not paralysis, of taking effective action in protecting
and valorizing the landscape and environment.
    Although attempts (2004-2006-2009) to codify the numerous laws (eventually re-
duced to unified texts) relating to areas of cultural, landscape and environmental herit-
age, gave some order, they did not resolve problems of fragmentation in the compe-
tences and related conflicts in which cultural, landscape and environmental heritage
was still engulfed, due to the limit of the unfortunate constitutional arrangement in
dividing power between the state and regions and the local authorities, outlined in the




                                                                                                       CONSERVATION SCIENCE IN CULTURAL HERITAGE
reforms of 2001 [20-34].
    If you add the grim formalistic bureaucratism that the administration was increasing-
ly becoming entangled in, in the interests of the community, and which Italian leaders
had the illusion of redressing through repeated schizophrenic legislative interventions,
it is easy to understand why the significant organizational and functional structures of
the codifying were ineffective. The result was that any action towards solving problems
slipped further and further away, mired in the exaggeratedly complex procedures, ex-
posed to risks of inefficiency and inertia, and at worst, thwarted by the sluggish mesh
of corruption.
    Nevertheless, the question of cultural-environmental legislation was emerging in
terms of positive law, since it took into account the objective relevance of the body of
rules relating to natural law, as a moral standard for making judgments and as a scale
of values in disciplining its use.
    It therefore tended more toward preserving, protecting and valorizing the environ-
ment – cultural heritage, which goes beyond the juridical sphere of legitimacy, ac-
cording to lines directed toward the concrete possibility of “legitimate use”5 and the
responsible use of the cultural heritage environment by respecting the principle of
preservation through its being used in a loving, responsible and prudent manner. The
final result is aimed at ensuring its integral sustainable development to protect re-
sources which must be passed on to future generations [35-37].


                                                                                                 327
                                                                                                                         5. The “environmental code” of 2006, an opportunity compromised by corrupt
                                                                                                                            ideological prejudices of cultural decline.
G.M. Cogo, G. Cogo - Sustainable development, moral law and legality in defense of cultural and landscape heritage




                                                                                                                          Unfortunately, when in 2006, implementation of the “environmental mandate” was
                                                                                                                      revised, there were probably no grounds for the illusion of effectively solving environ-
                                                                                                                      mental concerns with a fair regulatory body consistent with the primacy of man, ac-
                                                                                                                      cording to rules and procedures for its use related to responsibilities, and basing it on
                                                                                                                      the context of the values and principles enshrined in the corpus of natural law.
                                                                                                                          The idea that the environmental issue should be resolved in light of natural law as a
                                                                                                                      moral founding law6 of values, a prerequisite to make laws aimed at being compatible
                                                                                                                      with safeguarding, protecting and valorizing the environment at people’s disposal, was
                                                                                                                      certainly the right approach.
                                                                                                                          And it was just as right to believe that full coherence in all its parts would open up a
                                                                                                                      real possibility of “legitimate use”, a responsible use of the environment marked by the
                                                                                                                      principle of conservation through caring for it and using it wisely in order to guarantee
                                                                                                                      the preservation of these resources for future generations [38].
                                                                                                                          Unfortunately, the newly issued “environmental code” of 2006, was overridden by
                                                                                                                      changes inspired by corrupt ideological prejudices of cultural decline that by falsely
                                                                                                                      invoking community-based principles and values, were not long in obfuscating the fun-
                                                                                                                      damental canon of consistency in the order established by the laws of nature meant to
                                                                                                                      protect its vital process and to act in the interest of the user and the object used whose
                                                                                                                      balance is found in “common good.” Thus, the finalization in affirming human primacy
                                                                                                                      was compromised7, sacrificed by environmentalist ideology, inspired by the concept of
                                                                                                                      the environment as an absolute asset and end in itself.
                                                                                                                          Even if with the new “environmental code”, the entire complex system of laws re-
                                                                                                                      lating to the environment issued over the years were put in order for the first time, it
                                                                                                                      should be reported that suppression of the fundamental principles which through state-
                                                                                                                      ments of positive law expressly inspired the new regulations, it seriously jeopardized
                                                                                                                      its correct application; in particular the validity and effectiveness of the provisions that
                                                                                                                      were amended in accordance with criteria of misrepresented EU guidelines (e.g.: in
                                                                                                                      the protection and valorization of water resources, the use and disposal of waste as
                                                                                                                      well as in the field of configuring environmental damage and the recovery of compro-
                                                                                                                      mised resources).
                                                                                                                          The extreme difficulty in applying them has become evident, also due to the com-
                                                                                                                      plexity in articulating the subject matter, outlined in drafts with a high coefficient of rigid-
                                                                                                                      ity and the bottom line directed at a formalistic abyss, to the point where the underlying
                                                                                                                      principle of protection is put aside (as in the extremely cumbersome nature of the
                                                                                                                      procedures relating to reclamation and rehabilitation), and becomes even more frag-
                                                                                                                      mented by the division of responsibilities among the different institutional levels [39].
                                                                                                                          It is consequently evident how the repeated modifications caused the progressive
                                                                                                                      loss of spirit of sincere cooperation which had marked the original provisions in the
                                                                                                                      Environment Code.
                                                                                                                          It had, on the contrary, ensured its application (in the context of strict precautionary
                                                                                                                      and prudential provisions for the protection and valorization of environmental resources
                                                                                                                      naturally guaranteed by the regulations of loving, responsible and prudent use, accord-
                                                                                                                      ing to necessity and with sound reason) through the positive mark of importance attribut-
                                                                                                                      ed to the principle of good faith for all recipients, thus united in the pursuit of the common
                                                                                                                      good, precisely through the attention given to the welfare of the user and what is used.


                                                                                                                328
    It should also be noted that the evolution towards the current status of environmen-
tal and cultural legislation reflects the culmination of the cultural decline with respect
to the values and principles that should be the basis for the legitimacy of present-day
legal systems.
    Even with the original position on jus naturale8 laws aimed at the prevention
and solution of environmental problems through the grading of values according to
accepted canons due to their ability to function successfully in ensuring correctly
arranged relations, a very different frame of reference was achieved, almost completely
detached from the jus naturale and far removed from the fundamental principle which,
in re ipsa implies compatibility solely with values inspired by full recognition and
reciprocal alterity9.
    This process resulted in the progression and consolidation of the idea according to
which the legitimacy of regulating inter-subjective relationships and the composition of
interests can refer to (in the context of changing habits and practices in social relations
involving the grading of changing values over time in line with the evolution of morals, and
thus regardless of absolute references) recognition of the characteristics of the legislation
(authority for spontaneous compliance and / or coercion) and its application on the sole
ground that it wavers from the formation that governs the production of the source.
    The same can be said of institutions regulating environmental protection and valori-
zation, which have increasingly intensified their formalism by making procedures even
more complex and reducing their sphere10 of proper application.
    After the relativization of values and the gradual anchoring of the legitimacy of the
rules based on acknowledging the formal correctness of the process of production of
the source, there followed the adversely negative effect of their ethical self-referenti-
ality (justifying the adaptation of the reference principle which is no longer absolute).
    This placed the legislature and government institutions in a position, possibly even
with the need, to constantly adjust the regulatory framework to adapt it to actual needs
rather than assisting social needs in line with the fundamental rights of the person and




                                                                                                      CONSERVATION SCIENCE IN CULTURAL HERITAGE
the established rules of civil coexistence – as regards the Italian legal system – in the
first part of the Italian Constitution.


   6. The loss of natural moral law and the fall of legality

   This situation has led to the specific problems that have emerged in recent years in
promulgating decrees and laws, as well as in statements of illegality sanctioned by the
Constitutional Court, an aspect that is evident in proceedings concerning jurisdictional
conflict between state powers, particularly those relating to environmental and cultural
heritage legislation which are far too numerous and harsh [40-43].
   In the increasingly confused and contradictory legislative framework of the degener-
ative parliamentary system, the Constitutional Court, while acting within the restricted
area deriving from the principle of popular sovereignty and being prohibited from mak-
ing “political” decisions on behalf of the legislator, sought to rationalize the system by
playing a role that was more central and important, the less important the rationality or
reasonableness of the legislative decisions appeared, i.e. Parliament’s ability to be a
key player in designing the legislation [44-46].
   But the haziness of these elements, gradually separated from a regulatory develop-
ment, by this time, had affected the entire legislation, which increasingly suffered from


                                                                                                329
                                                                                                                      a state of precariousness, as evidenced – amongst other things – by the repeated and
                                                                                                                      contradictory reforms on the subject of environmental and cultural heritage.
G.M. Cogo, G. Cogo - Sustainable development, moral law and legality in defense of cultural and landscape heritage




                                                                                                                          On the contrary, in these sectors one should keep as far as possible to the co-natu-
                                                                                                                      ral, apparent immutability of codification required for the system to be reliable; incom-
                                                                                                                      patible with the frequent shocks and upheavals, that in most cases are unnecessary,
                                                                                                                      as there is no coherently established connection with the resources and organizational
                                                                                                                      methods of the administration.
                                                                                                                          All the above, were to calm the flow of incessant legislative action on substantial
                                                                                                                      subjective situations, on relationships, on the autonomy of the private sector11, as well
                                                                                                                      as on the protection of rights and interests in all fields of human action, thereby exac-
                                                                                                                      erbating the already worrisome uncertainty of the law.
                                                                                                                          Despite the description of the institutes that the legislator’s intention was to harmo-
                                                                                                                      nize the principles and provisions of Community directives, insights emerge, however,
                                                                                                                      that lead to considerations that confirm the somewhat unreassuring presentation made
                                                                                                                      up to now.
                                                                                                                          There is the procedural complexity of the institutions, the even more extensive im-
                                                                                                                      pact of the restrictive rules of the subjective situations related to economic interests
                                                                                                                      and the multiplication of overlapping, in some cases even duplicated, procedures, ob-
                                                                                                                      ligations primarily aimed at consolidating some privileged positions (e.g. consortia),
                                                                                                                      instead of simplifying functions by eliminating them, in addition to the competences of
                                                                                                                      the administration.
                                                                                                                          On closer inspection, a deep crisis permeates today’s public institutions and relations
                                                                                                                      between states, there is a deterioration of interpersonal relationships, inadequate pro-
                                                                                                                      tection of human rights, the uncertainty of implementing laws, increasingly lacking the
                                                                                                                      authority to spontaneously execute due to the inadequacy of legislative sources and the
                                                                                                                      criticality of verifying issues when faced with international, EU and internal jurisdiction.
                                                                                                                          Among other factors, this is due to the decreasing importance that is attributed to
                                                                                                                      the respective values at the basis of civil society, far removed from the principles of
                                                                                                                      natural law based on the recognition of the primacy of the person and aimed at promot-
                                                                                                                      ing the individual and the common good; consequently, the legitimacy of laws, based
                                                                                                                      on the mere acknowledgment of the formal correctness of the production process of
                                                                                                                      the sources, means it involves ethical self-referentiality.
                                                                                                                          The democratic debate, moreover, tends to anchor the dialectics of power rela-
                                                                                                                      tions merely at a procedural level, rather than in seeking shared values, coherent in
                                                                                                                      respecting people and protecting fundamental rights and duties, as well as correlative
                                                                                                                      freedom, according to the civilizational tradition of our society [47].
                                                                                                                          The present-day risk of formalism is therefore natural, even in the field of environ-
                                                                                                                      mental laws and cultural assets12, at the expense of the protection of goods and peo-
                                                                                                                      ple, based on shared standards.
                                                                                                                          All these elements aggravate the precariousness of the legislation. This critical as-
                                                                                                                      pect also explains the shortcomings in implementing the laws and decrees promul-
                                                                                                                      gated in recent years; as mentioned previously, followed by an increase in issues of
                                                                                                                      constitutional legitimacy due to jurisdictional conflict between government bodies, as
                                                                                                                      well as in proceedings concerning the constitutionality of the compatibility of national
                                                                                                                      law with EU law.
                                                                                                                          These critical issues are common to all areas of standardization, from laws on the
                                                                                                                      organization and functioning of institutions and administrations, in the fields of politics,



                                                                                                                330
culture, environment, education, health, civil rights, the regulation of the human, finan-
cial and economic, public and private activities.
     The cultural decline was naturally followed by the weakening of substantive law,
which strongly softened the authority and certainty of the law.
     Moreover, the sterility of the debate confined to procedural positivism13 far-removed
from extensions to metalegal aspects into which sink the roots of ethical principles and
absolute values has become aware of the stalemate from which it has been impossible
to move forward.
     One simply has to think of the endlessly unsuccessful debates on the reform of po-
litical institutions, on the various rearranging of the forms of government, on the rules
that should solve the problems of bioethics, of the beginning and the end of life.
     Debates in which the most extravagant opinions are recorded and which are char-
acterized by the denial of the call to the roots and traditions of civilization of which our
society should be the highest expression, in a measure corresponding to the capacity
of the cultural heritage on which it is based, also watching with a careful eye and a
calm mind Europe’s Christian roots.
     Substantive legality is a class of spirit that is extremely difficult to regain; and it does
not seem, in the mentioned context, that the humus is one where you will have the first
shoots: the problematic nature of law-making is still too full of ideological prejudices
and does not seem to be sufficiently manageable in the state of cultural defaillance in
which the institutions find themselves and which they should make provision for.


   7. A glimmer of hope

   Some grounds for hope may be seen in the Community legislation to harmonize the
protection and valorization of the environment, particularly in disciplining the activities
of public administration, where the main purpose as a guarantee for future generations




                                                                                                          CONSERVATION SCIENCE IN CULTURAL HERITAGE
will mean/involve legislative processes characterized by provisions rooted in the eth-
ics of the natural moral law, under the bastion of sincere cooperation and good faith,
protected by a legal system and severe sanctions, but also tempered by recourse to
equity, in those cases where general interest prevails.
   It is evident then, that in laws of transposition, the previously mentioned institutions
have complicated things with restrictive rules concerning the subjective situations re-
lated to economic interests and procedural rules with added obligations, rather than
simplifying them.
   It may be assumed that these negative aspects are not preventing the process of
recovery of substantive legality from beginning. It could however be initiated through
the reacquisition of the fundamentals of legitimacy of the rules on natural moral law
(discussed in detail above), re-establishing the legal conception of right as “ars juris”:
in the sense of correlating right and art because they represent reality, including the
common good, intended as its symbol.
   If inspired by values and perspectives that diverge, or at least, exclude the person’s
own good, because they do not engage in its full valorization and the protection of
the natural condition and its sphere of rights, right and art degrade to unnecessary or
harmful superstructures, divorced from the sublime spirit of the person, of their feelings
and their knowledge14.



                                                                                                    331
                                                                                                                          Notes
G.M. Cogo, G. Cogo - Sustainable development, moral law and legality in defense of cultural and landscape heritage




                                                                                                                      1
                                                                                                                         Encyclical Letter ‘‘Laudato si’’ of the Holy Father Pope Francis on the care of “our common
                                                                                                                      home”, Libreria Editrice Vaticana Copyright 2015, 00120 Vatican City, Italy.
                                                                                                                      2
                                                                                                                         Since the Roman Empire, edicts and senatus consulta expressly contemplated the protection
                                                                                                                      and conservation of works of art, which was the responsibility of the special judiciary “comes ni-
                                                                                                                      tentium rerum”. It is also interesting to note that the protection of art objects in the interest of the
                                                                                                                      community, was also pursued with recognition of the “actio popularis” which, in order to assert
                                                                                                                      the rights of the State, legitimized any “cives” (see: D’Urso, Tutela dell’ambiente e pianificazione
                                                                                                                      urbanistica, Padua, 1990, p. 23). Without going into detail here, it is important to note the strong
                                                                                                                      tendency to recognize the fundamental importance inherent in people’s interest in works of art,
                                                                                                                      to the point of allowing any citizen to replace the function of exercising the protection which the
                                                                                                                      state was expected to carry out. This did not mean – with the expected implications of the ‘’actio
                                                                                                                      popularis” and the particular subjective situation of the “cives” with regard to the “magistrature”-
                                                                                                                      that the imperial legislation expressly recognized the category of intangible heritage of artistic and
                                                                                                                      cultural interest, according to the classifications found in modern legal systems. It undeniably ap-
                                                                                                                      pears, however, that the publicizing of heritage, by reason of the connection with the community
                                                                                                                      in its interest in preserving it so it can be enjoyed, perhaps even as a heritage of the artistic and
                                                                                                                      historical tradition of the Roman people.
                                                                                                                      3
                                                                                                                        The three parts of the legislation of 1939, together with that on cultural activities (credit and sub-
                                                                                                                      sidies to the theater and cinema activities – Royal Decree Law n.1150 / 1938. Law n.1143/1935),
                                                                                                                      perceived only at a liminal level, the problem of a possible configuration of the separate category of
                                                                                                                      cultural and environmental heritage, of an intangible nature and public relevance also as regards
                                                                                                                      enjoyment, legitimizing the canonization of the functions and attribution of powers instrumental to
                                                                                                                      public administration in view of the preservation and valorization of those things subject to pro-
                                                                                                                      tection. Some timid attempt consequently emerged, for example, with the provision of territorial
                                                                                                                      landscape plans in which Art. 5, Law n.1497/1939, which in my opinion projected the preservation
                                                                                                                      and valorization of the “things” toward the configuration of environmental intangible property, even
                                                                                                                      if falling under the limited aesthetic notion of scenic beauty (see also Immordino, Vincolo paesag-
                                                                                                                      gistico e regime dei beni, Padua, 1991, pp. 40 et seq., and passim). In general, it should be noted
                                                                                                                      that though these rules proved to be incompatible with respect to recognition by the doctrine (see
                                                                                                                      Giannini, I beni culturali, in RTDP, 1976 pp. 3 et seq.) and by acceptability, even in legal terms, of
                                                                                                                      the notion of cultural property as a material testimony of the value of civilization, founded on the
                                                                                                                      connotation of immateriality of the heritage, the legislator of 1939 was strongly anchored to an
                                                                                                                      elitist conception of culture, using emphatically celebratory traditional references predominantly
                                                                                                                      characterized by rhetorical elements, rather than to the awareness of the spiritual patrimony of
                                                                                                                      values of civilization. This approach involved the prevailing recognition of the aesthetic value ​​of
                                                                                                                      things of art-historical and landscape interest, to induce the attention of the sphere of protected
                                                                                                                      interest toward their materiality rather than toward the “mark” of the testimony they represent. From
                                                                                                                      this false expounding, which today has finally been overcome, derived all those theories designed
                                                                                                                      to put the definition of a legal nature into categories and classifications that were incompatible with
                                                                                                                      the essence of cultural and environmental heritage. From the original framework of “goods of public
                                                                                                                      interest” proposed by Grisolia, La tutela delle cose d’arte, Rome, in 1952, followed by Biscotti, La
                                                                                                                      tutela giuridica delle cose di interesse storico-artistico, Padua, 1957, then, again by Piva, Cose
                                                                                                                      d’arte, EdD, and recently adjusted by Palma, Beni di interesse pubblico e contenuto della proprietà,
                                                                                                                      Naples, 1971, with the proposal of assimilation into the category of goods as functionalized prop-
                                                                                                                      erty, a long search started that ended only recently – through an analysis of the objective interest
                                                                                                                      relating to these assets as carriers of the traditional value of being a material testimony having the
                                                                                                                      value of civilization – in the distinction of cultural property from “things”, as an intangible good of
                                                                                                                      spiritual and collective relevance, heritage of the spirit of the people (cf. Giannini, I beni culturali,
                                                                                                                      cit., pp. 23 et seq.). The evolution of the elaboration, more than anything doctrinal, is reported by
                                                                                                                      all authors who have dealt with the matter. Finally, Alibrandi - Ferri, I beni culturali e ambientali, cit.,
                                                                                                                      pp. 15-24; Alibrandi, Beni culturali e ambientali, in EG.
                                                                                                                      4
                                                                                                                         The proposed approach to reading the text goes beyond the interpretations focused on the
                                                                                                                      thematic dichotomy reported separately, on the one hand to promote the development of culture


                                                                                                                332
through teaching and scientific research and technology, on the other, to protect the landscape
and cultural and environmental heritage, as if the constitutional foundations of the principles and
action plan of the public authorities aimed at developing and protecting the entirety of intangible
heritage promoted by Art. 9 of the Constitution, present different significance and scope, since
they relate to education and scientific research, in other words, the protection of environmental
and cultural heritage.
This orientation, from which the scientific reflection extends (see Merusi, Comm. Branca, pp. 434
et seq., Bologna, 1982; Crisafulli - Paladin, Commentary on the Constitution, sub-section Art. 9,
pp. 51 et seq., Padua, 1990, and references in this document), has undoubtedly led to remarkable
advances in the recognition of the constitutional foundations related to the two paragraphs of Art.
9, correctly highlighting the evolutionary interpretation profiles: both as regards what is related to
the organizational and institutional implications of the principles of freedom and autonomy in Arti-
cles. 33 and 34 of the Constitution for the promotion of culture and research; and also as regards
the reference, in the second paragraph, of the materials areas of environmental protection and
cultural and environmental assets in correlation with the principles and provisions of Art. 2 and
32 of the Constitution, for the development of the personality and the protection of human health.
However, at least in my opinion, it has without reason neglected the opportunity to interpret the
two paragraph in one whole in the resulting hendiadys, where the protection of environmental and
cultural assets is a function and factor in the promotion and development of culture. According
to this classification, it is likely that this section header of the cultural section of the constitution
allows for a reading geared to a much wider horizon of the constitutional principles and precepts
directed at the recognition, protection and valorization of the complex of intangible assets, not
only in relation to training and personality development, its cultural and scientific background,
together with the safeguard of environmental salubrity, with full freedom of research and teaching,
but also directly in relation to the construction of the universal heritage of values of civilization, a
part of the spirit of the people.
5
   In this respect, and because “legitimate use” must be consistent with the natural process of
life of all components, and thereof draws from the good of the user and the used, appears in full
agreement with the opinion of those who (Crepaldi Giampaolo, Togni Paolo, Ecologia ambientale
ed ecologia umana – Politiche dell’ambiente e Dottrina sociale della Chiesa. Ed. Cantagalli, Siena
2007) have recognized the contiguity of the concept of ‘”human ecology,” with that of the common
good, to be understood (with high magisterium appeal) as “the sum of those social conditions




                                                                                                                  CONSERVATION SCIENCE IN CULTURAL HERITAGE
which permit and foster in human beings the integral development of their person” (John XXIII -
Mater et Magistra, 51).
6
   Natural moral law outlines its scope as “... the true guarantee offered to everyone in order to
live free and respected in his dignity” (Benedict XVI, Address to the International Congress on
“natural moral law”, promoted by the Pontifical Lateran University, in “L’Osservatore Romano”, 14
February 2007, p. 6).
7
  The primacy of man cannot be seen as a source of arbitrary production compared to the design
of nature and its laws. Indeed, for the vocation of knowledge and the ruling which forms the basis
of user enjoyment, it is clear that its task, within which a culture of science and technology is con-
ceived according to the acquisition of knowledge and the instruments of enjoyment, is also aimed
at responsibly establishing the rules for its consistent and compatible use with all environmental
and cultural components.
8
  It is worth recalling some ideas expressed by De Bertolis O.S.J., Etica, religione e diritto secondo
G. Zagrebelsky, in La civiltà cattolica, 2009, IV, pp. 54-63, where the debate inherent in the founda-
tion of law among different sources, designed to reveal its essence in the “mediation between
politics and ethics, where ethics is understood as the whole context of what is, in society, effective
ethos” even though within the context of legislation on allegedly non-measurable values ​​on natural
law and even less on divine law, the right reduced to mere historical and human experience, it is
not only recognized that in this experience there is some sense in speaking of natural law, even
though the expression is certainly equivocal in the way it has been used in the course of the history
of legal philosophy by decomposing its meaning, but the relevance of its full value is also found to
be the element of construction and elaboration of culture of which it claims to be the matrix of the
law where beliefs and faiths together with other factors converge (see pp. 57-58).


                                                                                                            333
                                                                                                                      9
                                                                                                                        It is important to underline the reference to the substantial link represented by the corresponden-
                                                                                                                      ce between the legislative position and the position of interest of the subject – that the essence of
G.M. Cogo, G. Cogo - Sustainable development, moral law and legality in defense of cultural and landscape heritage




                                                                                                                      order normally tends to realize, exactly in the sapiential meaning of the word, according to which
                                                                                                                      it is precisely knowledge which gives order, of which justice also consists.
                                                                                                                      Legislation therefore, is not that in the absence of attribution and potential, which must be its
                                                                                                                      own, to concretely implement the order in which it places the abstract criterion: this occurs only
                                                                                                                      when it implies the correct structure of the inter-relationships corresponding to values ​​underlying
                                                                                                                      the duty to cooperate, and thus legitimize the claim of the individual’s cooperation, on full and
                                                                                                                      mutual recognition and on protection of alterity. In this respect, and to go to the origins, it should
                                                                                                                      be noted that already in the Bible the parameter of justice “has its roots in ethics, which defines
                                                                                                                      man as a being able to relate in truth to another person. Being fair or unfair is to be not so much
                                                                                                                      by obedience to a set rule, but the ability to recognize in the other’s face one’s own dimension of
                                                                                                                      a fair person “(FSJ Occhetta, Le radici morali della giustizia riparativa in La civiltà cattolica, 2008
                                                                                                                      IV, pp. 445 et seq.).
                                                                                                                      10
                                                                                                                          Similar considerations are found in writings dating back to P. Grossi, Pagina introduttiva, in
                                                                                                                      Quaderni Fiorentini, Giuffrè Editore, Milan, 1999, pp. 1-9. These pages, rich in ideas and strongly
                                                                                                                      critical of the notion that the law hesitates merely from the formation process that regulates the
                                                                                                                      explanation of the source, report the profound detachment from the community of associates, ex-
                                                                                                                      propriated the sublime prerogative being itself at the same time a substantial matrix and reference
                                                                                                                      of the formation process of the legal system, to the point that popular sovereignty is mortified and
                                                                                                                      reduced to the rank of the community of recipients or users of laws whose “formation process is
                                                                                                                      reserved for the ‘palace’ in a fully functional legalistic and formalistic vision to ensure the effecti-
                                                                                                                      veness of the expropriation perpetrated”. As a result, law is perceived as something foreign and
                                                                                                                      unpleasant, almost a “risk to be avoided for life”; a far cry from the vision that captures “the legal
                                                                                                                      dimension – such as the religious, economic, political – innate in our social everyday life, a part of
                                                                                                                      this normality”. According to A. the falsity of the notion for which, firstly includes the law in its writ-
                                                                                                                      ten form, and then outside it, its application through the practice of a judge, a notary or a lawyer
                                                                                                                      seems contradicted by the formation process of commercial law where the mercantile practices
                                                                                                                      with its mechanisms of adjustment and invention of instruments suited to market demands anti-
                                                                                                                      cipates the legislators who are limited to certifying in an official legal text the new rules of society
                                                                                                                      on the move, regaining the substantial matrix of the source, a denial of alleged absolute reserve
                                                                                                                      in favor of the law in the law-formation process. These reflections lead to recalling the passages
                                                                                                                      [G. Tucci, L’equità del codice civile e l’arbitrato di equità in Contratto e impresa, XIV, Vol. 2 (1998);
                                                                                                                      F. Galgano, Equità del giudice e degli arbitri, in Contratto e impresa, VII (1991); id., Dialogo sull’e-
                                                                                                                      quità (fra il filosofo del diritto e il giurista positivo), Ibid, XII (1996)] on issues of fairness that, in the
                                                                                                                      tension of overcoming the traditional conception of identification of the law with the statutory law
                                                                                                                      of the state, present compatibility within the overall context of the law matrix, incompatible with
                                                                                                                      the positivism relating to the legitimization only of state law.
                                                                                                                      11
                                                                                                                         The theme of the freedom of individuals, which actually corresponds to the part more correctly
                                                                                                                      relating to the subject of freedom of negotiation in the context of the broader field of what is
                                                                                                                      known as “the right of private individuals”, has always been studied by scholars of commercial
                                                                                                                      law, from which it originates, and the general theory elaborated. Assuming that the debate, which
                                                                                                                      has only recently subsided, is well-known, it will be sufficient to remember that the line of thought
                                                                                                                      is predominantly on recognizing the right of the private individual to the matrix function, according
                                                                                                                      to rules of conduct and relations, particularly in the field of property and economic rights relating
                                                                                                                      to commerce (once known as “merchant law”), precursors and appositions of a legal order with
                                                                                                                      respect to their codification by the legislature, in respect of which, it cannot but be recognized
                                                                                                                      as the recognition function of the law, aimed at guaranteeing the effectiveness of the regulatory
                                                                                                                      statute in the exercise of freedom of negotiation, postulating its originality and therefore the ability
                                                                                                                      to create, modify, extinguish subjective legal situations regardless of the ex lege effect for which
                                                                                                                      the latter is responsible, but rather, what it contributes to the effectiveness of the guarantee,
                                                                                                                      within the limits of judicial protection. These considerations are made to encourage reflection on
                                                                                                                      the problem of the legislative exasperation determined by its very own formalism regarding the
                                                                                                                      criterion of legitimacy, related to finding the right procedural path rather than establishing sub-
                                                                                                                      stantive values. This results in the inadequacy of the rules in regulating relations that are in line


                                                                                                                334
with the guiding principles of freedom of negotiation, for which any legislative measures intended
to introduce conformations or restrictive amendments according to the law in specific situations,
should be considered with extreme caution, if not with suspicion, since they are probably signs
of criticality involving the foundations of the substantive legitimacy of the legislative intervention.
For an exhaustive description and detailed study of these issues, consult Roman A., A proposito
dei vigenti artt. 19 e 20 della l. 241 del 1990: divagazioni sull’autonomia dell’amministrazione”,
in Dir. Amm., 2006, 02, pp. 489 et seq., which, despite the conversational tone of a seminar
meeting, proposes the systematic reconstruction of the notion of freedom, clarifies elements,
in an extremely original manner, which are drawn from the distinction, in the context of freedom
of negotiation, between the genetic profiles of private law and those of the autonomy of public
authorities (covered later on).
12
   In specifying the types of formalism, including the formalism of the science of the law, of positive
legislation or rights, and the formalism of legal procedure, the latter is held to be the most (cf.:
Giannini M.S., Il formalismo giuridico, op. cit., p. 197), which gives the example of the magistrate
who applies the law in a formal way in good faith, because for example he may “not realize he is
being conservative”, (…) may well justify his choice by saying he cannot substitute the legislator”
(referred to above, loc. cit.).
13
    On the issue of legal dualism, in which positivism of the law on the one hand and natural law
on the other are compared, together with the reactions of the law which should act as interpreter,
it is worth noting the contribution by Zagrebelsky G., Il giudice delle leggi artefice del diritto, cited
above, where, through a documented excursus on the dual spirit of the law, he reinforces the
shared view that it is the task of the judges of the law to oppose set jus against lex and invalidate
it because it is “unable to be assisted by any plausible reason” surpassing the traditional concept
of the Constitution as a super-standard that is expressed in the idea of the    ​​ hierarchy of those
sources in favor of “an idea of ​​supremacy or, possibly, temporal hierarchy: the constitutional jus
prevails over the ordinary lex because the former is the law of stability and stability prevails over
the volatility of occasional manifestations of power expressed by the law”. In the relationship
between constitution and law, the criterion of lex posterior is not valid because the Constitution is
the norm for its duration, which is obviously also subject to certain changes, but whose forces are
deeply rooted in social aspects of a cultural nature. The lex is the law of change, but change in a
constitutional state, must take place within a context of continuity.”
14
    Cf.: De Bertolis O. S.J., Analogie insospettate tra diritto e arte, in La civiltà cattolica, 2010, II,




                                                                                                                   CONSERVATION SCIENCE IN CULTURAL HERITAGE
pp. 23-32. It is useful to report the synthesis in notebook n. 3835, where the essay is published:
“The article reports on some elements that law and art have in common. The law is not a simple
application of an abstract rule to a particular situation, but imposes the search for a solution to
the individual case; as in any legal judgment, each work of art is unique and unrepeatable. Fur-
thermore, law and art are representations of human existence. Finally, lex is related to other dis-
ciplines – economics, morals, religion –, with which there is a mutual influence: what is “symbolic”
is the mark of recognition of shared values; art also, has a symbolic value, as it is a representation
of the hidden world that unites”.



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                                                                                                                        Biographical notes
G.M. Cogo, G. Cogo - Sustainable development, moral law and legality in defense of cultural and landscape heritage




                                                                                                                           Giampaolo Maria Cogo, former tenured professor of Administrative Law (1994-
                                                                                                                      2010) at the Faculty of Economics “Federico Caffè”, now the Department of Business
                                                                                                                      and Economic-Legal Sciences - University Roma Tre. He taught Economic Law (1982-
                                                                                                                      1991) at the Faculty of Economics of the University of Cagliari, Legislation on cultural
                                                                                                                      and environmental heritage (1992-1995) at the Faculty of Conservation of Cultural
                                                                                                                      Heritage of the University of Tuscia. Up to 31/12/2007, he was a member of the Scien-
                                                                                                                      tific Board for the PhD in Public Economic Law at the Faculty of Economics, University
                                                                                                                      of Rome “La Sapienza” and the PhD in Administrative Law at the Faculty of Law at
                                                                                                                      the University of Roma Tre (until 30/11/2009); a member of the Scientific Committee
                                                                                                                      and Board of Directors of the Masters degree in Engineering and Environmental Eco-
                                                                                                                      nomics at the Faculty of Economics “Federico Caffè” at the University of Roma Tre.
                                                                                                                      Assessor at the Ministry of Education for the review of research projects in the areas
                                                                                                                      of competence and related fields of scientific interest. From 1992-1993, Councilor of
                                                                                                                      the Minister for Universities and Scientific and Technological Research; Legal Adviser
                                                                                                                      (1992-2000) of the Conference of Italian University Rectors; Councilor of the Minister
                                                                                                                      for Infrastructures and Transport (2009-2011). Author of over 40 publications. He is
                                                                                                                      a lawyer in administrative matters; founder and member of the Governing Council of
                                                                                                                      Multilex & Economics, multidisciplinary consulting and assistance in Rome.

                                                                                                                          Giovanni Cogo holds a PhD in Public Administration Economy and Finance of
                                                                                                                      the Faculty of Law, University of Bari “Aldo Moro”; he is visiting lecturer at the Faculty
                                                                                                                      of Economics “Federico Caffè” of the University of Roma Tre, now the Department
                                                                                                                      of Business and Economic-Legal Studies, where he collaborates and carries out ac-
                                                                                                                      tivities in particular in the sector of “Administrative law”. He is the author of essays,
                                                                                                                      commentaries on issued judgments and monographs. He is a lawyer in administrative
                                                                                                                      matters; founder and member of the Governing Council of Multilex & Economics, mul-
                                                                                                                      tidisciplinary consulting and assistance in Rome.




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