Reasonableness and Best Available Science in the Constitutional Protection of the Environment

Abstract

Starting from the emergence, in various legal orders, of clauses referring to the ‘best available science’ – or analogous concepts – as standards that should orient decisions concerning regulation, the author reflects on their conceptualization within constitutional law. The essay aims to show how interpretations that effectively turn such clauses into norms serving as parameters of legitimacy may prove problematic, even independently of the risk of violating Hume’s law. The most problematic element lies in the morphology of constitutional law as a system of principles, in the axiological pluralism it embodies, in its consequent openness to hermeneutic outcomes that are not rigidly predetermined, and in the reasonableness that permeates it.