Teoria da decisão e controle judicial de políticas públicas ambientais

Abstract

The discussion about public policies judicialization won an increasingly larger space in the national legal setting. As the lawsuits multiply, there is an agreement that is identified as Brazilian doctrine of judicial review of public policies. Authors who make up this majority position agree with the legitimacy of the judiciary to exercise this control function and feature the arguments that must base the court decision in a particular case. For those hard cases, the Brazilian doctrine proposes a decision based on the principle of proportionality in the way it was designed by Robert Alexy, given that disputes should be resolved by weighting principles. Is encouraged, supported in new constitutionalism theory, the role of the judge in the control task. Environmental policies, when judicialized, are quite diverse decisions, many of them antagonistic, resulting from the application of the principle of proportionality or syllogistic reasoning as subsumption. The analysis of decisions allows you to check an inconsistency in its reasoning. In turn, the closer study of the proposals of the Brazilian doctrine of the judicial review of public policies demonstrates the way in which the theory is dependent on judicial discretion, the most striking feature of normative positivism. The same problem is present in the theory of Robert Alexy. It is intended to prove the vices of justification found in the precedents are the result of paradigmatic problems, like the discretionary power of the judge to the normative positivism, as well as the method and philosophy of consciousness for modern metaphysics. The theory of judicial decision requires a paradigmatic rupture both in the field of law and in philosophy, so that it can absorb the invasion of philosophy by language operated by the ontological-linguistic turn and the search for legitimacy that marks the post-positivist paradigm in the face of undeniable existing links between philosophy and law. In order to construct a theory of proper decision for these purposes, looking at the Law as an interpretative concept like Ronald Dworkin, in the light of the contributions provided by the philosophical hermeneutics and the hermeneutical criticism of the law, the possibility of building a non-discretionary decision. The judicial review of environmental policies must be guided by the existence of an argument of principle, as well as a decision-making justification to devote integrity and consistency in the application of law.