O novo constitucionalismo latino-americano e a superação do modelo moderno/colonial de apropriação e desapropriação agrária

Abstract

This study investigates the New Latin American Constitutionalism and its contribution to the rebuilding of the appropriation and expropriation modern agrarian model. There will be a reflection on constitutional reforms experienced by some countries on the continent, especially Colombia, Venezuela, Bolivia and Ecuador, considering that those countries recently rebuilt their democratic political projects in order to make themselves more suited to the multiple social and existential conditions of their people. Indeed, this transformer constitutional movement brought categories that, aimed at priority respect for nature and biodiversity, recognized the identity, the cultural awareness, the specific values and territoriality of the Andean native people, who have been historically put in a subaltern role. Thus, was formally opened on the continent a diverse logic than that modern, colonial and individualistic rationality, from which was built the Brazilian land appropriation and expropriation model. Furthermore, it is object of this work the analysis of the economic model adopted so far of evaluating the land in the expropriations that take place in Brazil, a model that ultimately reward owners who do not give their land any social destination. In this context, this work will try to demonstrate how the New Latin American Constitutionalism is presented as an alternative development project capable of breaking old conceptions of property that, guided by a legal owner speech, give it almost absolute character and a place in the core of the legal system. The central role of cultural practices and worldviews of the continent in the new constitutional texts, especially the philosophy of buen vivir, sumak kawsay, sumak qamaña or ñande reko and the recognition of the Pachamama rights, questioned the modern idea of rupture between man and nature and allowed consideration about alternative ways of relating to the land. In this perspective, the innovations brought by this transformer constitutionalism are able to refound the modern Eurocentric legal system regarding the models of appropriation and expropriation of the land from a different concept of development for the good life recovered from the collective Latin American subjects, who use natural sources in a harmonic and equilibrated way, preserving the spaces they occupy and territorialize and that are essential for their physical and cultural reproduction. The recognition of various territorialities sets the guidelines for the transformation of the contents of land property, which, in addition to commodity and private law contract object, is transformed in collective space where a variety of rights are fulfilled. For the development of this study, we adopt the relational perspective of Joaquín Herrera Flores, that allows reflection on the fundaments of the Latin American land appropriation and expropriation model without losing sight of its relations to the social context in which is inserted.