A mediação como alternativa para resolução de conflitos ambientais envolvendo áreas de preservação a partir da teoria de Luis Alberto Warat

Abstract

Current?s society is surrounded by complex conflicts involving not only individual rights, but also collective rights. This situation requires a more effective response from the Law for the treatment and resolution of contemporary legal disputes, ensuring the protection of the constitutional rights and guarantees emerging from a democratic rule of law which, however, it has already transposed such a concept to the "Ecological Constitutional State", "State of Environmental Law", among others that better illustrate the transindividual dealings faced. Thus, the present work proposes to study the institute of mediation as an alternative in the resolution of environmental conflicts in areas of preservation, from the perspective of Luis Alberto Warat?s theory (1941 - 2010), the theoretical-philosophical referential of the research. Warat brought new perspectives to Brazilian law: he deconstructed legal theory and presented a proposal for interdisciplinary reflection, which seeks to incorporate into the legal system aspects such as love, affectivity, alterity and sensitivity. Thus, this doctoral thesis aims to unveil the paths of transformative mediation proposed by Warat as a practical possibility for the resolution of transmoderns conflicts in preservation areas. Theoretically, the proposal is justified by the crisis situation in the state jurisdiction, notably in procedural theory and practice, which, in Brazilian law, is marked by the influence of Roman law, historical root that makes it difficult to overcome the traditional paradigm of procedural rationalism. The legal language is still formalistic, from the legal education in academies to the performance of magistrates in the resolution of conflicts. Warat is a pioneer in the inauguration in Brazil of the semiological, linguistic and epistemological carnavalization of Law. Thus, in deepening the study of Warat?s transformative mediation, the social relevance of the thesis emerges: the emergence of exploration and the proposal for a more appropriate alternative to the treatment of environmental conflicts in preservation areas and, with this, the search for the democratization of the process, enabling the active participation of those involved in the conflict and providing a plural decision-making process, emphasizing care for the environment as an instrument capable of promoting effective practices of ecological preservation and conservation. Thus, the research problem seeks to answer the ways to adopt Waratian mediation as an alternative to resolving environmental conflicts arising from the occupation of irregular or illegal preservation areas. It was not sought here to confirm the mere possibility of applying the theory, but rather to prove, by deepening practical applications, the initial hypothesis - confirmed during the research - that the Waratian mediation, in socio-environmental conflicts in preservation areas, it is an alternative with more benefits than harms (and, therefore, adequate and necessary) for the crisis experienced in these types of dealings. Through qualitative research, hermeneutic approach method, monographic procedure method, bibliographic and documentary research technique, notably, using the philosophical basis contained in the author's theses, In addition to the theory, it is noticeable that the practice of Conduct Adjustment Terms (known in Brazil by the Portuguese acronym, TACs) are a perceptible instrument for the clarification of environmental controversies and better implementation of effective ecological public policies. In that bias, the assertion of the hypothesis that the humanized view, pedagogical and transformative - based on the ethics of care - of the practice of Waratian mediation in Brazilian law is the way to the constitutional proposal of preservation of the natural environment for present and future generations, seeking to ensure a development that sustains the natural resources indispensable for an integral life, and with the active participation of all those involved in this decision-making process. [resumo fornecido pelo autor]