Democratização do direito para o (re)conhecimento do pluralismo jurídico dos povos e comunidades indígenas

Abstract

This research aimed to analyze whether Brazil adopts legal pluralism in favor of native indigenous people, and if so, whether it’s sufficient to protect them, or if there’s a need of implementing measures of law re-democratization through the construction of a new legal paradigm that enables a definite access to intercultural justice for this kind of community. In Chapter I, we get started approaching the configuration of human collectivities according to the bond of solidarity and social cohesion (community, society, culture, and identity); in Chapter II, we analyze multiculturalism and the policies linked to it, as well as the feasible need to adopt inter-culturalism based on the equal recognition of cultures in order to overcome the tolerance of the former. The seek for new paradigms to face globalization and neutralize the risks to human life led us, in Chapter III to analyze a number of contemporary theories and their ethical and philosophical foundations (cosmopolitanism, liberalism, and liberal communitarianism, etc.). Moving away from the anthropocentrism and eurocentrism, so we are able to analyze the need of a new universal ethic based on life (biocentrism). For this new ethic, we analyze the knowledge of native and traditional people, mainly sourced from their cosmovision of good-living and their sacredness of Mother Earth (Pachamama) (such as those adopted in Bolivia, Ecuador, Mexico, and Colombia), encouraged by the emergence of the expansion of human rights to reach the oiko-human rights. In Chapter IV, we approach the negative effects of colonialism/ imperialism kept until nowadays, and the struggles of colonized and submissive population to reach their real and concrete autonomy. In Chapter V, wrapping up we study the hypothesis of Brazilian legal pluralism and the insufficient access to justice of indigenous populations, on failures regarding the protection of free determination and their territory. Besides, the limitations faced as social subjects entitled with their own universal and fundamental rights. At the end of this chapter, we point out a few measures that can leverage the law re-democratization. Eventually, we come to the conclusion that the historical-cultural plurality of indigenous people demands a new role for national and international law as an instrument of protection, based on respecting for their free determination to create and apply their own norms of socio-juridical rules to facts and conflicts that take place in their living space, regardless the official law. In spite of accepting legal pluralism, Brazil doesn’t recognize it as egalitarian, but are subordinated to the hegemonic culture ethics of the “non-indigenous”. It imposes as a limit to the “universal human rights”which is not aresult of an intercultural debate and doesn’t respect the recipient’s cosmovisions. Submitting them to law and justice systems in which theyhaven’t participated. Equal respect for cultures demands intercultural dialogue to generate intercultural human rights. If there’re extreme hypotheses of deeds that violate the essential content of human rights related to life, instead of being criminalized. There must be the decolonization of the law and its reconstruction through an intercultural dialogue, where indigenous voices are heard. We argue that the evolution process and transformation of these traditional realities shouldn’t be impacted by the intention to “civilize”, but rather that, from historicity; they can get their ethosdevelopment for each indigenous people, according totheir ethical principles and traditions. In short, the Brazilian legal framework (Federal Constitution and the Indigenous Norm) and the ethical obligations contracted on international human and indigenous rights treaties reinforce Brazil’s obligation to implement broad access to intercultural justice, so that in case of conflicts, even on human right field, may be promoted the intercultural dialogue instead of perpetuating the Western culturaldomination to the detriment of local cultures.Furthermore, the evolving ofuniversal human rights to intercultural human rights (including the oikos-humanrights), respecting their own cosmovisions, beliefs, traditions, indigenous people’s uses and costumes, which aren’t based on a recent identity, but on an ancestral history and culture. The research was transdisciplinary, with reference to legal sources and from other disciplines, such as philosophy, sociology, and anthropology. The method used was documentary analysis. (Legislation, jurisprudence, and doctrine), review of concepts, comparative method of legal systems and exegesis.