Comum, estado socioambiental de direito e práxis instituinte: a instituição dos comuns ambientais como novo paradigma político-jurídico ambiental

Abstract

The present research has as its theme the environmental crisis from a critical perspective based on theories of the common. The objective is to analyze the extent to which the concept of instituting praxis, elaborated by Dardot and Laval, enables the institution of environmental commons, aiming at a new environmental legal-political paradigm. The research methodology used is based on a qualitative approach to the concepts, political, legal and social phenomena that underlie the theories addressed, through the bibliographic procedure. The scientific method used is historical and dialectical materialism, as it understands that the legal phenomenon must be observed, not in an isolated way, but as part of a complex whole, investigating the influences of the various aspects that encompass the social fabric, seeking to understand the reality in its entirety. Recognizing, also, that the Law is constructed and defined from the material conditions of capitalist production, where economic interest prevails in the construction of legal science. The research has exploratory and descriptive purposes. Regarding the results obtained, it can be said that the common is a political theory that stands as an alternative to the traditional dichotomy between capitalism and socialism. In addition to being a political principle, the common is the result of a practice, that is, the result of practices and social production. Still, it is inferred that the common has historically been expropriated by capitalism, mainly due to the phenomenon of enclosures in Europe in the 16th century. On the other hand, it is concluded that the State and the market are unable to meet environmental demand. Immersed in neoliberal logic and policies, they show themselves as the main agents of environmental degradation. It can also be said that the instituting praxis shows itself as an emancipatory social practice and an innovative political tool in the search for a new society beyond capitalism. It is concluded, finally, that the institution of environmental commons presupposes the construction of institutions and rules external to property, because the common is inappropriate.