Os povos indígenas e a defesa da natureza como titular de direitos na constituição federal: uma análise descolonial a partir de Ellacuría

Abstract

This is a Master's thesis in Law, which addresses the following research problem: does the 1988 Federal Constitution allow for an interpretation according to which Nature is the holder of rights based on indigenous worldviews? The socioenvironmental crisis has been increasingly exacerbated. Addressing it requires a break with the anthropocentric paradigm, in which human beings have been elevated to the reason for all things. The general objective of this work is to investigate whether or not the current constitutional order accepts an interpretation that considers Nature a subject of rights, according to original conceptions. The specific objectives are three: to start from concepts of decolonial theory to analyze the "coloniality of power," developed by Aníbal Quijano, in the relations of the Brazilian State with Indigenous Peoples and with Nature; to verify the transformations of legal subjectivity since the beginnings of modern Law and the possibility of classifying Nature as an "oppressed subject," in the terms developed by Ignacio Ellacuría; This research aims to present the General Theory of the Rights of Nature, differentiating its paradigms, concepts, and principles. Regarding methodology, the intention is to use the dialectical method, with a critical analysis of violence against indigenous peoples and Nature, followed by a more expository section on the various understandings of subjectivity, and concluding with a proposed reading of the Constitutional Text. In the first chapter, through decolonial thought, the roots of Modernity will be explored to question some colonial patterns that sustain a dominating relationship. Both indigenous communities and Nature suffer the consequences of the coloniality of power. Therefore, the research intends to take a decolonial approach to the Human Rights of indigenous peoples and investigate their connection with the Rights of Nature. In the second chapter, to verify the possibility of including Nature as a subject of rights, the evolution of legal subjectivities since the advent of the Modern Age will be analyzed. For this purpose, the theory of the historicization of Human Rights of the liberation philosopher Ellacuría and its eventual analogical application will also be used. Finally, in the third chapter, the text will present a brief history of the Rights of Nature, going through its stilldeveloping General Theory, in order to then offer a reinterpretation of the constitutional order, according to the rights to territory and to the Good Living of the original communities.