Autonomia privada, sujeito coletivo e afirmação do direito ao corpo dos povos indígenas

Abstract

Indigenous peoples have historically suffered from the erasure of their identities and the extinction of their cultures. Nowadays, after the Federal Constitution of 1988, we live in a moment of overcoming the tutelary and integrationist regime, this struggle being the fruit of the indigenous movement since the 1970s. This struggle is for the recognition of their diverse ways of living, autonomy and their lands. The rights claimed by indigenous peoples, consistent with their identity and culture distinct from national society, are not supported by the colonial structures that are still rooted, since they are the basis of a movement against the realization of rights that respect their cultural specificities. Such a movement, in this work called self-protection of society, instrumentalizes the law with discriminatory and racist bases in disfavor of the autonomy that indigenous peoples have to conceive the world and to carry out their life projects according to their different cultural contexts. Support for a plural State is still timid in the Federal Constitution, however, in terms of norms such as the protection of different ways of creating, doing and living (article 216, II), as well as the chapter dedicated to indigenous people (Chapter VIII, articles 231 and 232), allow the understanding that indigenous people have autonomy to seek their ways of well living in a reality of cultural pluralism. However, the autonomy claimed by indigenous peoples is not the classic autonomy of liberalism. Liberal autonomy, summarized in the phrase “laissez faire/laissez-passez”, was directed only at economic and not existential issues, such as dignity. Multiculturalism, in turn, only masked the indifference of liberalism, based on a multicultural regime of tolerance only when minorities, such as indigenous peoples, did not go beyond certain moral values of Western societies, especially christian values. The result of multiculturalism has not changed the situation of indigenous peoples, who do not fit into the classic categories of law, such as, for example, that of the generic subject of law capable of commercial exchanges. Paradigm cases such as the Tukano family who claimed a shaman for the health treatment of an ophidian accident or the Yanomami who seek the return of the blood of their dead to destroy the body and all of its substances in their funeral rites, show what anthropologists have been defending the body in indigenous societies is a source of culture and a central figure in their social processes. The body assumes not only an attribute of personality, a very personal asset, but also an attribute of the cultural integrity of the community. The collective subject is not someone who is not divided with society, on the contrary, it is a subject whose bodily attribute is quite undivided with his society, from which he cannot be separated. The legal consequences of a collective subject of law lead to the reflection that the classic categories and institutes of civil law, such as the subject of law, its autonomy, free development of personality and civil responsibility, must be rethought and reinterpreted under plural values of the Federal Constitution.