Derechos de las comunidades tradicionales: la construcción de una sociedad solidaria como resultado de una hermenéutica plural

Abstract

This article argues about the effectiveness of the Brazilian constitutional norm, which foresees the fundamental objective of building a solidary society (article 3.º, I), by criticizing the idea of "principle of solidarity" when that norm is applied by courts. It argues that solidarity in the Brazilian Constitution does not present itself as a normative category, but rather as a goal of social transformation for which the Judicial Power plays a fundamental role. The purpose of this article is to start a discussion that aims to demonstrate that the Brazilian Judicial Power empties the constitutional goal of building a solidary society when it grasps solidarity as a norm-principle, promoting its applications based on a rhetorical discourse, of a principled bias. In order to overcome this scenario, it is true that the Judiciary should act in harmony with the Latin American context, especially through inclusive methods, within the scope of socio-political-cultural plurality, promoting an anti-hegemonic view of law. In this sense, the Brazilian legal order imposes a redemption of a historic debt to the public authorities by predicting the rights of traditional communities, especially to the judicial power, through a plural hermeneutics and in the end the formation of a social culture of otherness.