Trilemma, complexity, administration, and exceptional events

The aim of the paper is to identify a key to understanding that allows us to overcome the regulatory trilemma that has emerged, seeking to offer a perspective according to which the exceptional event, an expression of the (ineliminable) complexity of reality, is included (in the competent political and institutional fora) in a broader case, encompassing contingencies. And this is not to foresee them, often asking science to do the impossible, nor to block activities considered dangerous through an exaggeration of the principles of prevention and precaution, but simply to allow the legal system to assume a broader vision, inclusive of the unusual case in point, to provide a toolbox of possible reactions to be triggered in the event (even remote) of the occurrence of an exceptional event.

And moving from the awareness of the impossibility of zeroing out the uncertainty attributable to complexity, the aim is to propose a key to understanding that allows us to overcome that binomial 'exceptional event/ordinary nature' of the intervention, including the regulatory one, which has characterized emergency law until now. If one considers the manifest inadequacy of positive law to govern exceptional events through extraordinariness (extra ordinem), and if one moves from the consideration of the complexity of society in terms of social structures and interacting systems, it becomes clear how the occurrence of the unusual event, if correctly contemplated within the framework of the evaluation of complexity, can be managed through instruments that are certainly exceptional, but which the legal system has incorporated, has provided for within it.

Therefore, the correct assessment of risk and the institutionalization of its evaluation within the legal system of virtuous processes and procedures require a different perspective of a dialogue between science and law that allows a normalization of unusual cases. It is essential to have a view of risk law that allows the system to acquire an approach able to guarantee not the occurrence of the exceptional event but a damage reduction in the case of its occurrence and a strengthening of the system's reaction capabilities.

Emblematic, in a non-positive sense, in the Italian situation is the relationship between territorial planning and volcanic risk management, with regard, for example, to evacuation plans and land management (e.g., building amnesties).

In order to experiment with this different approach, the evolution of the settlement system has been analyzed at different times, comparing this expansion with the legislative apparatus at the related time.