Maurizio Cafagno – Professore ordinario di Diritto Amministrativo, Università dell’Insubria – (maurizio.cafagno@uninsubria.it)
TABLE OF CONTENTS
1. Introduction: the environment as a complex, adaptive system and natural services as emergent phenomena.
2. Mismatch problems.
3. The public administration as a complex system and the law of requisite variety; 3a) Exploration and strategic anticipation; 3b) Institutional experimentation and policy labs; 3c) Embodied learning.
4. A summary formula: adaptive management.
5. Counterpoint conclusions.
Contemporary environmental law is affected by a profound tension, arising out of the interface between two apparently irreconcilable dimensions: on the one hand the constant fluidity within ecosystems, with their non-linear dynamics, their critical thresholds and their multiple equilibria; on the other hand the formal architecture of administrative law comprised of discrete categories, sequential procedures and bounded competences. This tension entails an inherent epistemological challenge of understanding how a system of rules, which is necessarily finite and structured, can deal with the endless complexity of the natural world. Ecosystem services represent a paradigmatic case of this tension: they are not traditional goods, yet create value; they are not contractual services, yet support the economy; and they emerge out of ecological processes operating on multiple temporal and spatial scales, yet require immediate, bounded administrative decisions. This paper aims to reconcile the theory of complex systems with administrative law in order to sketch out the basic outline of a model of governance that is open to integration, flexibility and resilience. The study proposes a notion of environmental governance that, reflecting its specific subject matter, in turn takes on the features of an adaptive, complex system that is called upon to co-evolve alongside protected ecosystems, thanks to poly-centric, participatory forms of governance undergoing a process of constant learning.
