Logica del tipo normativo di problema applicata alle variazioni edilizie essenziali, con particolare riguardo alle traslazioni abusive ed al coinvolgimento d'interessi paesaggistico-ambientali - pt. I

The study starts from the limits that betrays the relevant regulatory aggregate, in terms of legislative technique, since:- at national level, it is claimed to associate a homogenizing ratio with the treatment to be reserved for abuses wrongly considered to be comparable for disvalue;- that ratio is however nullified by the regional implementing legislation, already penalized by a nebulous framework for urban planning and building skills; thus deter mining a fragmentation of the regime far beyond the instances of “identity” detail and therefore, contrary to the general principles of the Republic, a formulation heavily “in odor” of unconstitutionality. Attention then focused on the most striking example: offered by the alleged merged examination of the essential variations relating to the location of the building. In this context, taking inspiration from a certain jurisprudential contribution, to which an epistemological approach to the problem has given favorable shore, it has been found that a more reasonable interpretative outcome (on the actual level) can derive from a “functionalist” approach. The latter, in turn, presupposes accepting the idea of a normative scheme of a consequentialist type as well as a dogmatic instrument (starting from an objectifying notion of the public interest, up to a corresponding updated meaning of administrative discretion) attributable to that meta-scientific “imposing program” of justification of choices that passes through the criterion of “falsification” of critical rationalism instead of that sort of “weak legal positivism” (tending to degenerate into “rationality with respect to value”) that objects to the different expressions of “living law”. From here, a “strategy of transposition of the problem” of essential building changes according to mechanisms that make it recognizable by the legal system: without prejudice to the underlying point of view (marginal, pretermesse, supervening complexities), nor the need to safeguard (ab extra come ab intra) the organization in which it is inserted, through a work of continuous complementarization of the reference principles (government of the territory in the strict sense, protection of the landscape-environment, etc.). In this context, also recognizing that the task of (regimentation-)government is complex, due to a high rate of uncertainty (if not unpredictability) of the future, whenever the “dynamics of scale” (connected to the space-time horizons that are assumed as reference) concern complex (sub-) systems that require to refer to adequate clauses. This is the case of ecological-environmental processes, in relation to which there is now a tendency to lean towards a guarantee of resilience, rather than for the integral conservation of a certain state. Hence again, the “operational” implications, passing on the procedural side and in particular on the protection side.