Meio ambiente, propriedade e livre iniciativa : colisão de direitos fundamentais e ponderação

Abstract

It reflects about the application of the weighting technique (partial principle of proportionality in the broad sense) by courts in our legal system. The objective of this paper is to analyze the correspondence between the weighting used by the courts and the theoretical proposal of Robert Alexy (2008). Fundamental rights essentially have a normative structure of principles, so they are commandments of optimization and their effectiveness is subject to maximum satisfaction, dealing with the factual and legal situations of the concrete case. The fundamental right to the ecologically balanced environment has a normative structure of principle and, for this reason, often collides with other constitutionally protected rights and assets. In the present study, the conflict of the Right to the Environment with the Fundamental Rights of Property and of the Free Initiative is appreciated. From this perspective, the aim was to answer the research problem, namely, whether the use of the Brazilian courts' weighting in cases of collision between the environment and the fundamental rights of property and free initiative is adequate and satisfies the theory Proposed by Robert Alexy, or confirms the practice of voluntarism and jurisdictional arbitrariness, putting at risk the effectiveness of these fundamental rights. In the first chapter, it elucidates on the normative differentiation between rules and principles, besides treating the collision of principles, proportionality and weighting. The second chapter deals specifically with the three fundamental rights in question, namely: the fundamental right to an ecologically balanced environment, a fundamental right to property and a fundamental right to free enterprise. The method of inductive-analytical research, through the empirical research of jurisprudence (TJ / RS, TJ / SC, TJ / AL, TJ / PA and STF) is adopted, starting from research categories, the "collision between the fundamental right to the environment with the fundamental right to property" and "collision between the fundamental right to the environment with the fundamental right to free enterprise". Subsequently, we will analyze the subcategories of research "collision", "proportionality", "adequacy", "necessity" and "weighting". Among the eight cases analyzed, we verified the perfect practice of weighting and the other partial maxims of proportionality in only one case law.