A relativização ao direito de propriedade na busca por um meio ambiente ecologicamente equilibrado

Abstract

The following monograph aims at demonstrating the interrelation between the limitation of the property right imposed by the accomplishment of a social and environmental function and the preservation of the urban environment. The property right, ensured as a fundamental right since the liberal constitutions from the XIX century, has suffered changes along the years. Such changes are about, mainly, the non-legitimation that legal system guaranteed when exploring the property unlimitedly, which, nowadays, must be subordinated to a social and environmental function. Thus, the evolution of Environmental Law in Brazil and around the world, emphasized in the second half of the XX century and boosted by the preoccupation of the organizations with the environment ecologically balanced, had a leadership with the rising to fundamental right by the Citizen Constitution of 1998. Then, the Environmental Law assumed a landing of third generation law. The guardianship of the environmental good was added to the social function of the property, ensuring that the property accomplishes a social environmental function, destined to the suitable use of collectivity questions, promoting the social justice. The social environmental function must serve as a parameter to the exploration of property. Besides that, in case of necessity, it must assume its role, which is a leading role, revitalizing the property to ensure the environmental preservation. The re-reading of property right, through the Environmental Law eyes gave it a new format, guided by the comprehension that its exercise it is not absolute and irrevocable anymore, considering that, the environment and the public interest prevail upon the individual one. Searching for the effectiveness of the social environmental function in relation to the urban property, constitutional instruments of urban politics has emerged. Such instruments, applied to the property, must be used considering the social environmental function, ensuring an environment ecologically balanced to the present and future generations. Considering the bibliographic nature of this research, the systemic complex theory was the method of approach used, whit interface among law, politics, ecology, science and culture.