Comunidades tradicionais e direitos de posse e propriedade: uma visão crítica

Abstract

The theme of this research is built around the study of possessory theory and the territorial rights of Traditional Communities. The delimitation proposed here is based on the reflection of the Brazilian legal dogmatic referring to the matter of possession and property. In a first moment, the processes of establishments and legislative and doctrinal creations on the subject are examined; and, in a second moment, the analysis for the constitutionalization of territorial rights of Traditional Communities in the 1988 Constitution of the Federative Republic of Brazil. The general objective is to examine how the subjectivation of the territorial law of Traditional Communities is inserted in the current context of possessory theory in Brazilian law, specifically, in what is understood within the possessory theory for Traditional Communities in the face of current legal dogmatics. The concern turns to investigating the effectiveness of the fundamental rights of Traditional Communities based on the critical theory of law. This research presents some central problems that surround the following question: How does the Brazilian possessory theory receive the debates inserted in the 1988 Constitution of the Federative Republic of Brazil? Data collection is done through documentary and bibliographical research. The method of approach in this research is mixed and the method of procedure was carried out through a case study, analyzing the historicity of the Brazilian norm in the understanding of possessory rights, with the objective of establishing a critical relationship with what is understood today by rights territorial rights of Traditional Communities and the applicability of such rights by the judiciary. Their object of approach is the methodology of the critical theory of capitalist activity in the field within the law, specifically when working from the concept of dispossession and that theft is property, arguments used to support the right to property as effectiveness and the consequent access to land by Traditional Communities in Brazil.