O princípio da função social da propriedade agrária como legitimação de ausência de reforma agrária

• Autor(a) principal: Tabata, Josiane Santos Farias
• Data de Publicação: 2019
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Repositório Institucional da UFG
• Texto Completo: http://repositorio.bc.ufg.br/tede/handle/tede/9514
• topic: Reforma agrária; Princípio da função social da propriedade; Teorias críticas: marxismo, realismo jurídico; Agrarian reform; Principle of the social function of the property; Critical theories: marxism, legal realism; CIENCIAS SOCIAIS APLICADAS::DIREITO

The principle of the social function of property is considered a central principle in Brazilian Agrarian Law. Its inclusion in the legal system was seen by scholars as a milestone in view that the legal institute preaches the overcoming of the individualistic conception of property rights, viewing property as a good that is intended to satisfy social needs and not only of its owner. Currently, the social function of property is an instrument used to carry out the expropriation by social interest for agrarian reform purposes, as provided in articles 184 and 186 of the Federal Constitution. It occurs that the lack of significant results regarding the agrarian reform in the country, evidences the weaknesses of this legal instrument in this agrarian context, opening space for the present critical analysis. The present study brings a new perception and approach about the social function of property. It seeks to observe the principle as a political, economic and legal institute. Through an analysis of its historical foundations, it is possible to understand that its creation occurred in a context of Economic Liberalism, period of economic changes and instabilities. The theory of the functionalization of the private property of the means of production was created for the maintenance of the capitalist system, as a response to the vulnerabilities of the current system, that is, the risk of stagnation of a production good as important as the land, without concerned with a proposal for social rights. The institute is, therefore, a reaffirmation of private property and its political- economic foundation. Also, through Critical Theories of Law, namely, Marxist theory and Legal Realism, it is possible to understand that the social function of property is not the appropriate legal instrument to support agrarian reform. Marxist theory gives us the foundation that many prescribed rights would only appear as the search for the common good, covering ideological foundations of the capitalist system, but what really prevails are the privileges of the ruling class. According to Marx, what really prevails in the relation between civil society and the state is precisely the capitalist economic model, highlighting individualism, inequality, exploitation of the less favored classes and the prevalence of the dominant economic class. Finally, an analysis of the social function of property through the theory of Legal Realism is made. This theory gives us an analysis of the interpretation of legal norms, demonstrating that the legal norms are not endowed with a precise meaning before being object of the interpretation activity, being that the conceptions and value judgments of the legal interpreters influence in the application of the norm. Thus, through the analysis of judgments, it is observed that the Judiciary still has a conservative stance against social movements, making it even more difficult to carry out an agrarian reform.