Environmental ethics and right to punish. Global criminal policy in the human-nature dualism

In the course of human history, different concepts of human-nature dualism have been developed, from those that combine the human being and nature into one single entity, to those that, on the contrary, place the human being and nature on two different planes, as if they were in perpetual conflict with each other; and lastly, to those that consider homo sapiens unique among living creatures. The environmental issue, on which global attention is being focused from a social and consequently also legal point of view, is not a political and economic issue. On the contrary, it is an ethical issue. In fact, it is criminal law that outlines public ethics, since in a context of value pluralism, only the law can adopt points of view that respect pluralism and at the same time are not typical of specific ideologies – owing to superior principles, the law may not be based on a specific ideology. However, in a situation where there is a lack of public parameters for moral assessment, the safest way to avoid a certain type of behaviour is to make such behaviour a crime, since otherwise there is no meaningful or shared value system: any actions to prevent such behaviour that are not undertaken in terms of criminal law or in juridical terms at all have very little impact in a system that has no independent code of conduct. This is the ethical reason for a legal protection of the environment by criminal law. The confusion between public ethic and criminal law, therefore, requires that the punishment (penalty) should correspond as far as possible to the sanction ethics (remorse). Hence the abjuration (once again) of intimidation as the outdated purpose of punishment in favour of a more effective form of control in a democratic society, i.e. re-education as an essential effect of social dialogue with the offender. Re-education directs the offender’s conscience toward remorse and their behaviour toward social acceptance. In the criminal law of the environment, it is to be pointed out a further problem: The suspicion of the close link between financial interests and choices of criminal policy emerges from the principle of sustainable development in accordance with a purely utilitarian definition. In fact, by carefully observing the positive reference framework, the quality of ecosystems is protected by criminal law only when significant damage to the quality of the air, the soil or the water jeopardises human interests and not natural equilibrium. In conclusion, the analysis of environmental law was an opportunity to observe a common aspect to the whole contemporary legal system: It can say that the global ethic, forged by international agreements, is the democratic inspiration of every criminal policy to would safeguard the human value and the true meaning of the «right to punish».