The precautionary principle and the risk concept.

Abstract

Objectives: This work focuses on the Precautionary Principle, starting from its current position as a principle still extra-judicial until the delineation of a procedural routine that effectively includes it in the quarrels in which the precautionary nature is evidenced. The context is the duty of care towards the environment, introduced in the main section of Article 225 of the 1988 Constitution. Methods: descriptive, applying hermeneutic principles to analyze laws and literature; the notion of risk, associated with human affairs, is used in order to establish the basis for suggestion of a procedural routine for cases of precautionary nature. The concepts of civil liability without damage and of malice or negligence in face of risk exposure are discussed in parallel for their importance in sustaining the precautionary nature of a dispute. Results: the duty of care towards the environment stated in the main section of Article 225 of Constitution of 1988 makes evident that introducing a procedural routine proper to treat the cases of precautionary nature is a necessity of Brazilian Civil Processual Law. It is concluded that discussing the precautionary nature of the case the public audiences and amicci curiae roles is a first phase in this procedural routine. Next, the formation of Court's conviction in a context where there isn't scientific confidence about the consequences of someone's act or omission must be considered. The decision which may not be the end of the case may include the installation of an Observatory to follow and evaluate periodically the environmental consequences of the enterprise.