St. Ursula University
Since the establishment of the Brazilian Republic,1890, the impact of the abolition of slavery, 1888, on interests of ex-slaves has not been problematized either constitutionally or politically. This situation explains the fact that their descendants remained excluded for a very long time from their substantive citizenship. Because of this, land disputes have multiplied throughout the twentieth century.
The Brazilian Constitution 1988 “settled” these conflicts through the recognition of the descendants of slaves as owners of the lands they had occupied for a very long time. The Decree 4887 \ 2003) set the objective criteria for the recognition of communities and their land holdings.
The Anthropological Report is the normative instrument which diagnoses and officially recognizes the community as subject of rights with the aim of territorial delimitation and titling of property, from anthropological conceptions as common origin, historical process, collective memory and diacritical marks.
However, the application of this decree ended up either maintaining the exclusion of the descendants of slaves from their rights or by avoiding questioning specific elements of social reality. Moreover, the defense of the specific interests of these citizens deprived of their citizenship is still based today on racial discrimination which falls under the legal regime of slavery and which today still operates as an institutionalized common sense.
This institutionalized common sense is reprocessed by anthropologists as remaining from a “frozen vision,” being the official legal definition of slaves and quilombos of the days of slavery. As a consequence, the land conflicts which took place before the promulgation of the constitution of Brazil of (Eighty-eight, 1988 were linked one after the other at the end of the Decree of 2003.
Empirically, it is the Sacopã community that is the subject of the research. This community is located in an urban area in one of the richest neighborhoods of Rio de Janeiro. Its story begins 50 years after the abolition of slavery in Brazil with a couple of slave descendants who settle there. It is the Sacopã family. It has since fought against economic and state agents who, not recognizing any legitimacy in it, do everything to expel it.
Methodologically, Discourse Analysis is the tool capable of revealing the hidden and unproblematic elements of social reality. The hypothesis is that the methodological filter imposed by legal positivism does not allow us to detect the silences and violence of the slavery regime, nor the socio-cultural effects resulting from racial discrimination, nor the socio-economic effects of non- execution of inclusion policies for former slaves.
These are the elements which, in the Brazilian past, were hidden by a discourse based on a specific, modern and European epistemology, aimed at colonizing the “New World”. It was the epistemological basis of formal, modern, European, universalist citizenship. Until today, these elements still remain hidden and marginalized by common sense reproduced as an effect of this legal regime applied to slaves. According to the “frozen view” of old, slaves, as the object of law, and quilombos, as illegal collective subjects, were excluded from any kind of citizenship.
ORLANDI (1990), a Brazilian linguist, bases her studies on French ” Discourse Analysis ” and appropriates the theoretical categories “discursive formation” and “interdiscourse”; ideology and subject; Material relations of production and individual experience; with the aim of considering them from a Brazilian historical perspective by referring to the effects of the discourse of European colonization in Brazil.
On the theoretical-linguistic level, it understands the function of the “already-said” as “already-internalized”, as memory which remains present as a rationality. And it is historicity which, in the following theoretical-sociological plan, will compose the materiality of silence or the unspoken as a guarantee of movements of meaning. This conception of silence is developed by Orlandi from his critique of the original conception of silence “as a remainder of language”.
The historical process of the community, single-family, of sustainable production, of collective use of space, which is defined according to daily necessity, customs and traditions established according to experience, without any previously established rule, is today seen as illegal activities in front of the public order standards of urbanization and environmental protection, which arrived in the region from the 70s and still remain today. Likewise, it does not fit the classic definition of individual civil property, which is why the occupied space disrespects the state and the neighborhood and suffers from successive invasions by property speculators.
It is in the “unspoken” field of the legal norm, where imperative norms impose on the community the duty to adapt and to become civilized. The community can choose – in the binary system of traditional law – between remaining in the region by complying with urban planning and environmental protection standards or carrying out its cultural and economic activities in the suburbs or in the favela.
On this point of view, the Report and the Decree reaffirm and reproduce the historical materialities of illegitimacy and illegality of the activities of the community because they are not able to restrict or to compose the social effects of the meaning that the community has. for the Neighborhood, for economic agents and for the State.
From the analytical perspective, property and identity for Sacopã surpass the characterization of identity of the anthropological relationship, of collective memory, common origin, historical process as a diagnosis of a past that becomes present.
Identity and property, for Sacopã, are also formed from the preservation of interests historically denied and delegitimized by “Other” actors and institutions. Not just facts or traditions, but interests, for which the community fights until today on the argument of the realization of constitutional rights or substantive citizenship.
Identity and ownership, for the community, is made up of interests based on experience and need, and is established before or independent of legal provisions. All this inherited, on the one hand, from the days of slavery and the African traditions that were brought there, and, on the other hand, from resistance against the colonial regime.
It is this conflictual movement, this systematic and historical negation of these interests of the community that is silenced by the Decree, by the Anthropological Report and by the incidence of other urban planning and environmental laws which, because of its nature of public order, are political instruments used for the purpose of fixing or expelling the community.
If “the said”, represented by the legal norm, restricts the conflict to the territorial question and attributes to them a solution based on the formalization of civil property law, which awaits the civilizing promises made by traditional law, the “non- dit ”seems to denounce the silence and the historical-social rejection of the real interests of blacks, slaves and quilombos as real social actors or historical subjects.
The theoretical hypothesis to be developed is that the non-fulfillment of material citizenship results from the methodological filter imposed by the current traditional theory of law in Brazil. This discussion can be made from the critical thinking of the epistemology of the South, from the deepening of the historical and sociological critical aspects of the Brazilian reality and from the demand of the black social movements that were brought and discussed at the National Constituent Assembly, but modified because of the positivist constitutional methodological filter and the process of objectification of the categories identity and property in the Decree 4887 \ 2003