Por uma tutela efetiva ao meio ambiente: a aplicação da law & economics para combater a tragédia dos bens comuns

Abstract

This thesis aims at studying the problems arising from the environment, trying to establish a method of truly attaching social efficacy to this common right to all individuals, since the environmental problems that have emerged worldwide escape from normality, intrinsically affecting human beings in their human right to a healthy and balanced environment. In this scope, it will be primarily introduced the environmental problems, demonstrating the current difficulty faced by individuals concerning the commons and showing the theory behind this true problem mankind face as Garret Hardin exposed, called The Tragedy of the Commons. Moreover, a historical construction of what this novel human right is will be made, in order to explain its establishment as a customary rule of international law of third dimension. Furthermore, the insufficiency of such “positivation” to fight the Tragedy will be addressed, constituting the main quest of his text, departing from the positivism paradigmatic crisis until the erection of a new paradigm that observes the functional character of law. Due to such view, the necessity of finding in other sciences mechanisms to overcome this current issue, such as incorporating the Economic Analysis of Law methodology, originated form the Law and Economics School will be clarified. Thus, the Economic Science instruments will be studied; chiefly, the Pigouvean and Coasean concepts, and two significant theories for the Law field, which are the Rational Choice and Game Theory. Above and beyond, the detailed contributions generated by these economic inputs will be discussed from the monetization of the environment to the emergency of positive incentives, which tend to be the “new” key to solve both the structural view of the law system and the environmental problem, as it encourages the social agents to act greenly. In this sense, two examples of such application will be shown: one in the domestic system involving environmental taxes, and the other in the international arena, concerning the transactional markets (cap-and-trade) as the one established by the Kyoto Protocol. For such analysis, a theoretical-qualitative research on the matter will be made, intending to review the existing bibliography, but not expecting to exhaust it.