ANALYSIS OF THE PRECAUTIONARY DECISION ABOUT THE USE OF PERMANENT PRESERVATION AREAS (ADI N. 3.540/2005) IN LIGHT OF MACCORMICK’S ARGUMENTATIVE THEORY

Abstract

The present work aims to analyze, in the light of MacCormick’s argumentative theory, the precautionary decision issued at ADI n. 3.540/2005, which stated the constitutionality of Provisional Measure n. 2.166/2001 that regulated the use of Permanent Preservation Areas. On that purpose, a bibliographic, documentary and jurisprudential research was made. The conclusion was that the decision is not universalizable since it was exceptional as it admitted the regulation of a provision in art. 225 of the Federal Constitution by use of a Provisional Measure. It was also not consistent because the systemic arguments used in the vote of Minister[1]Rapporteur, with which most Ministers agreed, were contradictory. It was also not coherent because the mention to some abstract constitutional standards to support it does not ensure that there was no violation to other standards. If the decision is not based on universalizable, consistent and coherent arguments, it cannot be considered an adequate or legitimate solution in a Democratic State of Law and it should not guide the analysis of seemingly similar cases as referred to in ADIs n. 4901, n. 4902 and n. 4903 on the new Forest Code.