Meio ambiente e ativismo judicial na perspectiva dos direitos humanos

Abstract

The object of this paper is to understand the limits of the power to judge, in the context of judicial activism, when the environment is being attacked, within constitutional principles that reinforce as fundamental the right to life, which doesn’t exist without the minimal environmental substratum. The environment is classified, and for such an analysis all the focus is turned to the natural environment. This study tries to show the anthrop-centered relationship between the human species and the environment, and the result of such behavior in Brazil, all of which permeated by third dimension human rights. Environmental Law is defined and the system of constitutional and infra-constitutional rules that provide the legal substratum for defense of the environment is indicated. The principles for interpretation and application of environmental rules are indicated. The function of the Judiciary Power and its relationship with the other Powers are examined, and the essentiality of its participation in the environmental issues is demonstrated, from the point of view of judicial activism and its possibilities in practice. The change of paradigm for the development of an active and creative behavior on the part of the judge before the new and complex issues, which involve the collective dimension of the law, creates a discomfort in the other Powers, but with potential possibilities of change in such a relationship, which will result in an enrichment of the jurisdictional function. The magistrate’s limits when judging a suit, in which the environment is being degraded, will go up to the application of the constitutional principles in the condition of rationally necessary rules in the context of judicial activism and according to the will of the Constituent Power. The purpose of that is to allow the maintenance of the fundamental right to life in a natural environment substratum, where the human species and the other creatures may live in a dignified way. The ideological application of the law by the magistrate as a guardian of the fundamental constitutional rights and guarantees gives priority to the principles of effectiveness, of human dignity, and to the inquisitive. The magistrate’s active role in the environmental issues indicates that he/she must break, in a creative and well-founded way, all the links in the ruling chains that enslave him/her to form, with the clear object of defending the environment. The approach method used is the empirical-inductive, and the research technique is that of indirect documentation analysis. Data collection was carried out through documental and bibliographical research, within the context of the traditional methods of juridical interpretation, using the critical theory of law as a method of analysis.