Comunicação intersistêmica entre direito, ciência e economia: análise jurídico-penal dos danos causados no solo

Abstract

The theme of this study is the legal-criminal protection against damage caused to the soil by the addition of phosphorus as a fertilizer in agricultural production, with a focus on intersystemic communication between the Law, Economics and Science systems in the context of a complex and globalized society, marked by its fragmentation and differentiated functions in a hypercomplex universe. Therefore, the objective was to offer a systemic reinterpretation of the protection of damages caused in the environment, approaching some aspects of the pragmatic-systemic theory developed by Niklas Luhmann and its contemporary reinterpretations, based on the contributions of Gunther Teubner and Leonel Severo Rocha. This research is justified by the fact that the Theory of Autopoietic Social Systems, formulated by Luhmann, allows a more accurate observation of ecological risks, when conceiving the self-reference of social systems, which are operationally closed, but open cognitively and operate from their differentiation in relation to others and have communication as an essential element. In this conjecture, the soil is a critical component of the biosphere, functioning not only as a basis for food production, but also for maintaining the quality of the local, regional and global environment. According to the United Nations (UN), the soil is the foundation for the development of agriculture, the essential functions of ecosystems and food security. At the global level, several countries are committed to fulfilling the 2030 Agenda, and have realized that only through sustained efforts will they be able to reduce inequality, promote sustainable economic growth and protect the planet. From this perspective, given the need for a structural coupling between the subsystems of Law, Science and Economics, which favors intersystem communication, as well as the best way to deal with the new risks produced in contemporary society, the research problem arises: how the the Law System deals with the (im) probability of intersystemic communication between Law, Science and Economics as a procedure for the operationalization of legal-criminal protection in relation to soil contamination by the addition of phosphorus as a fertilizer in agricultural production, given the risks produced in the current complex society? Niklas Luhmann's Systemic Theory represents the theoretical and epistemological contribution that underlies this research, with an understanding based on Leonel Severo Rocha's pragmatic-systemic current studies. The research is descriptive and the design followed through bibliographical and documentary research; secondary data from Hemielevski's research were used, which clarifies a way to assess the environmental risk of phosphate fertilization, arising from the organic and/or mineral form, to determine the maximum available P content that a soil can support. Thus, the main hypothesis of this study is confirmed, namely, the occurrence of coupling operations of the structures of the environmental and criminal legal subsystem, related to soil contamination caused by agricultural activity. It can be concluded that the typified crime in art. 54 of the Environmental Crimes Law (Law n. 9,605/98), would be the most adequate protection for the prevention and punishment of conduct that harmed the environment. The research showed that, in view of the concurrent competence, as well as the transfer to the municipality to grant and supervise environmental licenses, the Environmental Secretariat of the Municipality of Rio Verde must prepare a Normative Instruction in order to define the documentation necessary for licensing and establish criteria for the presentation of environmental plans, programs and projects for the implementation of activities related to agricultural production, listing technical recommendations for the application of phosphorus (P) fertilizers and monitoring the quality of the fertilized soil, under the terms proposed by Hemielevski's research.