Principles as Guiding Lights and the Performance Moments for stabilizing indigenous possessory rights in Brazil

Abstract

This study proposes a methodological reflection on the problem raised in the Extraordinary Appeal 1.017.365/ SC, through which the Federal Supreme Court (Brazil) considers the definition of the legal-constitutional statute of the territories of traditional indigenous settlement as a matter of general repercussion. Is it possible to say that there is a conflict between two opposing narratives: traditionality versus temporality. To shed light on this issue, we count on Drucilla Cornell and her “Philosophy of the Limit”. This philosophy provides a deconstructionist and diachronic analysis of the legal system by promoting the genealogical reconstruction of the problem and the hierarchical relations involved. According to Cornell, legal interpretation is both a discovery and an invention of the solution through the normative orientation of principles, which act as guiding lights. Principles help us to avoid paths that go against their intended purpose,
which allows us to handle differences and disputes through the legal system. Despite that, there are several external complexities raised by the parties involved that draw attention to the “Performance Moments”, which means the moments for the presentation of different arguments by the different actors involved (not only lawyers but also other interested third parties) to the audience(s), in a responsible way for the intended effects and sensitive to the impressions received. This is a clear allusion to the metaphor of “Law as Performance” developed by Sanford Levinson and Jack Balkin, though with some differences, as their developments focus on the performance of jurists, especially in the role of interpreter/judge. At the same time, the present work also seeks to explore the “responsibilities in performances” of the other actors involved.