O princípio constitucional da sustentabilidade como baliza hermenêutica para a liberdade decisória estatal

• Autor(a) principal: Mello, João Augusto dos Anjos Bandeira de
• Data de Publicação: 2016
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Repositório Institucional da UFS
• Texto Completo: https://ri.ufs.br/handle/riufs/4366
• topic: Direito; Direito público; Direitos fundamentais; Responsabilidade do Estado; Sustentabilidade; Direito constitucional; Direito administrativo; Direito fundamental ao futuro; Ética da responsabilidade de Hans Jonas; Sustainability; Fundamental rights to the future; Ethics of responsibility of Hans Jonas; CIENCIAS SOCIAIS APLICADAS::DIREITO

This work aims to demonstrate that sustainability stands as a constitutional principle that is part of the regulatory framework of the constitution, limiting and conditioning spaces of state discretion. Therefore, this work begins arguing the constitutionalization of law, and its consequences to the knowledge of the legal system, such as: the recognition of the normative force of the constitution, which must be permanent and sustainable over time; the centrality of fundamental rights (in its vertical and horizontal effectiveness); and the approach of law with philosophy, where the constitution is perceived as a plexus of values, values which conform stability, dignity and development of the social body. This theoretical framework brings important consequences for the Administrative Law, because in this paradigm, state is seen not only as a large inductor and protagonist of public policies, but primarily also as the great conductor of constitutional design, inducing and encouraging state and private actions in favor of social development, now and in the future. What becomes even more important because future needs protection; claim what is justified based on the responsibility ethics of Hans Jonas, which warns that the indiscriminate use of technology and technique, irrationality of the management of state power and the uncertainty consequences of the changes inflicted on nature, bring a real danger to the continuity of human life on Earth. Thus, based on the paradigm of (perennial) normative force of the constitution and philosophical studies of Hans Jonas, this work defends the recognition of a fundamental right to the future, and more, the recognition of a constitutional principle derived from this fundamental right: the principle of sustainability. At this point, from the recognition of sustainability as a constitutional principle (and as a principle, it must shape the entire application of law), it is shown how this principle interferes with the perception of real public interest, and in this way, how it will be understood as an interest embodied to the constitutional project, in the present and in the future. At this point, any areas of decision-making can only be interpreted / understood from a frame of sustainability, what means a frame which would compel the continued implementation of the constitutional project, and continuous and increased realization of fundamental rights. In this context, it is proposed that legal interpretation is attached with the aforementioned frame, consolidating a hermeneutic with eyes on the future and on the sustainability of the constitutional project, which will restrict the freedom of decision-making action, particularly state discretion, in order to refrain selfish interests and situations of unsustainability; what will have a material impact on the understanding of institutes as existential minimum, reserve of the possible, and social setback prohibition, institutes that must be understood in the light of the sustainability here mentioned.