O reconhecimento de grupos como sujeitos de direitos e o liberalismo igualitário: uma análise a partir dos povos tradicionais brasileiros

Abstract

Far from being a consensus among legal philosophers, political philosophers and jurists around the world, arguments about the group rights today often assume the same character as arguments about the ascription of rights to foetuses, dead or future generations or non-human animals. In each of these cases, the central issue is whether we should allow that the relevant entity has the moral standing to bear rights. The fact that human rights have become the lingua franca of the international standard entails a tendency to present any significant international standard in that language. Social and collective rights, rights of minorities, among others, are rights listed among human rights, which in turn shows a tendency to consider individuals separately and groups, or social and collective entities, according to the liberal thought, as a sum of individual rights. This tendency hinders the understanding and acceptance of the idea of groups as subjects of rights and, consequently, the attribution of rights to groups in national and international legal practice and in the conduct of public policies. Based on this premise, I seek to defend, from the perspective of egalitarian liberalism, based on Rawls, and not on the neoliberal view, the attribution of rights to groups, considering the group an entity that is not the mere sum of the rights of its members. Groups rights are relevant, even though they're not specifically , despite legal doctrine consider so, human or individual rights. This can be demonstrated by the most emblematic recognition policy in Brazil, that is enshrined in a constitutional provision, Article 68 of the Transitional Constitutional Provisions Act (ADCT), which states that: "The remnants of quilombo communities occupying their lands shall be recognized as the definitive property, and the state should issue them the titles. " A striking difference of these minority communities lies in their community life form, based on the economics of sharing, as defined by Mauss (1922), or in supportive economy, according to Singer's conception (2018), without the internal advent of private property land, which differentiates them substantially from the majority society in which they are based, based on market economy and private property. The case of the difficulty of granting titles to quilombola communities, which do not have "legal personality", reveals a gap to be filled, in favor of the theoretical admissibility of the group rights, and the impropriety of almost unanimous consideration in the Brazilian legal doctrine of collective rights as the sum of individual rights. Similar to the difficulty of granting titles to quilombola communities, which do not have "legal personality" and which shows a gap to be filled, in favor of the theoretical admissibility of the rights of groups, is the difficulty found in the formal process of recognition of the identity of people, category without consensual definition and without "legal personality". From this impropriety, resulting from the consideration of collective rights as the sum of individual rights, will be presented a proposal of definition of people compatible as what is accepted in international law and the adoption of a theory of group rights, which recognizes rights of self-government to national minorities, such as quilombolas and indigenous peoples, in Brazil, using the concept of self-determination, similarly to what is taken into consideration for national states, together with the principle of solidarity. This principle is used in foreign policy and international relations to prevent the "other" or "others" from being indifferent to the sovereign-ego, or to the national interest, in line with the concept of ICD-International Development Cooperation, which evokes moral precepts such as social justice and solidarity.