The Environmental Precautionary Principle as an Argument in the Judicial Creation of Law: Taruffo’s Contributions to Judicial Justification

Abstract

The theoretical thesis of the judge as creator of law, supported by Hart, Dworkin, Alexy, and Taruffo, has a long tradition and jurisprudential backing. Under this premise, it can be argued that judicial work is not limited to the exercise of subsumption, but in many cases requires discretionary choice, especially in the face of regulatory gaps or conflicts not foreseen by the legislator. This creative power, however, is not arbitrary: it is subject to argumentative, constitutional, and systemic limits that require rational justification. In the environmental field, the precautionary principle provides fertile ground for studying judicial law creation in contexts of scientific uncertainty and ecological urgency. This principle is invoked when there is uncertainty about the effects and impacts of a project, work, or activity on the environment, and it allows judges to make innovative and justified decisions in defense of the collective right to a healthy environment, the protection of life, nature, and sustainable development. It is a source of law especially when, in the absence of clear rules, the judge invokes it as a legitimate normative basis for resolving a specific case. A complex tension then arises between the precautionary principle and innovation when scientific uncertainty persists. This article revisits Taruffo’s arguments on the limits of legality and justification in the judicial creation of law. Based on this, it examines how the precautionary principle can operate as a legitimate foundation in the jurisprudential construction of environmental law and sustainable development.