A moradia e a função social da propriedade na Constituição de 1988 como componentes do direito à cidade

Abstract

At the end of 2019, one of the greatest challenges in its history has ravaged humanity since the discovery of the new Coronavirus. Quickly, the new virus spread and the World Health Organization declared that the world was facing a pandemic. In this context, the lack of decent housing for millions of Brazilians has become a social problem that has been exacerbated and wide open during the COVID-19 pandemic. Although being a fundamental right provided by the 1988 Brazilian Constitution, the right to housing, like other social rights, has always been distant from the majority of the population. However, the pandemic also showed that, through the mobilization of social movements and entities, it is possible to establish a new paradigm in the implementation of the right to housing, with the construction of another city model, more inclusive and less unequal. For this, it is essential that the property effectively fulfills its social function as established in the Constitutional text of 1988. This work seeks to answer the question of the possibility of building another more just and supportive city, with the realization of the right to adequate housing, taking advantage of the experience lived during the COVID-19 pandemic, with the affirmation of property as a social function and the city's social function enshrined in the 1988 Constitution. The historical dialectic-materialist method was adopted with the technique of explanatory bibliographical research. Recognizing the role of the Marxist critique of law, without illusions or naive voluntarism and emphasizing the secondary role of law in relation to the performance of popular movements, seeks to defend an insurgent use of the law, based on the legal instruments established in the 1988 Brazilian Constitution and in the infra-constitutional legislation referring to the urban order, as a means of building another model of the city. It was concluded that it is possible to advance in the creation of a new city, as proposed by Henri Lefebvre, more just and without segregation, making tactical and combative use of the normative instruments available in Brazil, but without failing to recognize that the true transformations will occur with social mobilization in the streets