Protection of indigneous and quilombola identity

an analysis in light of multiculturalism and constitutional openness

Abstract

With the overcoming of the Rule of Law and the rise of the Constitutional State, concepts such as pluralism and flexibility have fostered an unprecedented constitutional openness in the history of constitutionalism, reconciling law with social reality, dynamizing and adapting it through a continuous process of transformation and evolution in order to keep pace with social dynamics. The overcoming of the conception of a homogeneous society and the paradigm of cultural assimilation that prevailed in classical constitutionalism has revealed the pluralistic and heterogeneous reality of contemporary society, especially in a country as vast and culturally diverse as Brazil. Thus, the recognition of the inexorable link between the right to difference and the materialization of the human dignity of ethnically and culturally differentiated communities, such as indigenous peoples, quilombola communities, and other so-called traditional peoples, has evolved worldwide. We therefore work with the understanding that the cultural uniqueness of these communities constitutes a true fundamental right for them, understanding that the international instruments intended for their protection and the maintenance of their traditional way of life form part of the Brazilian constitutional framework, according to a logic of constitutional materiality, rising to the hierarchy of constitutional norms, one of the greatest contributions of Neoconstitutionalism to the legal universe and constitutional hermeneutics.