Os limites do suporte jurídico-administrativo para proteção do direito patrimonial cultural dos quilombos na perspectiva do diireito agrário: caso concreto do sítio histórico e patrimônio cultural Kalunga
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2022-06-22
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Universidade Federal de Goiás
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From the perspective of Contemporary Agrarian Law and dialoguing with Cultural Heritage Law, this research seeks to present the limits of legal/administrative support to protect the heritage rights of quilombola communities, which from the 1988 Constitution onwards are considered as Brazilian cultural heritage. and have their territorial rights guaranteed, with the recognition of ownership of the land they occupy. From the concrete cases of violation of cultural heritage rights of the Kalunga Community, the largest quilombo in Brazil and already recognized by law as a Historic Site and Cultural Heritage, the research entered the discussion of the impropriety of the legal norms that involve the Brazilian Cultural Heritage, relating the normatization and social relations, the internal contradictions of law and the externality of the legal norm as a condition of its reality. The dissertation is structured in four sections that deal with the historical trajectory of blacks from the quilombagem process to the formation of contemporary quilombos, presenting them as active subjects in the formation of Brazilian society, as well as their figure as an active subject of resistance and protagonist. of the process of liberation from slavery. It presents the Right to (of) Brazilian Cultural Heritage, constitutionally guaranteed to contemporary quilombos, in virtue of being considered bearers of reference to the identity, to the action, to the memory of the different groups that form the Brazilian society. Above all, it reflects on the need to recognize land as an agrarian asset of a cultural heritage nature, which represents for quilombola communities, in relation to the portions of land they occupy far beyond a common geographic space, it is a territorial space that must be protected so that all other cultural heritage guarantees are preserved and passed on to future generations. The theoretical foundation used is interdisciplinary, constituted by the theory of Colonial Slavery by Jacob Gorender, the concepts of Quilombagem and Quilombismo by Clovis Moura and Abdias Nascimento, the theory of Ethnodevelopment outlined by Guillerme Bonfil Batalla, and to specifically address the legal problem pointed out, presenting possible solutions, the Dialectical-realist conception of law was used, whose source used were the studies of Alaor Alves Café, debating the limitation of the right put to solve social problems, and a new posture to be adopted by legal operators from of Language, Meaning and Reality. It is understood from the set of theories studied and from the data seized that the cultural heritage rights of the quilombolas will only be fully satisfied by going through the reflexive path of passing from the right to social praxis, and from there, pointing out ways for the Judiciary and the operators of law linked to administrative bodies do not rely solely on Legal Dogmatics to resolve conflicts involving the jettisoning of the rights in question, as this is incapable of embracing the complex and dynamic social demands. The methodology adopted was quantitative and qualitative research, and in the quantitative field, data collection was used in administrative records, administrative and judicial processes, which contributed to revealing the problem pointed out regarding the violations of quilombola cultural heritage rights, whether practiced by society or by the State. And in the qualitative field, the method of legal-comprehensive investigation was adopted to use an analytical procedure of decomposition of the problem, making a complex investigation that seeks understanding and possible solutions in its various aspects, relationships and levels. It also joined the Action-Participant Investigation, or Feeling thinking, where the researcher researches by feeling the community, living with the community, and returns the results of his/her observational and participatory investigation to objectively contribute to the resolution of the problems pointed out in the community, object of investigative research.
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SILVA, A. G. Os limites do suporte jurídico-administrativo para proteção do direito patrimonial cultural dos quilombos na perspectiva do diireito agrário: caso concreto do sítio histórico e patrimônio cultural Kalunga. 2022. 169 f. Dissertação (Mestrado em Direito Agrário) - Universidade Federal de Goiás, Goiânia, 2022.