Análise comparativa sob a perspectiva de Gadamer da decisão do Supremo Tribunal Federal no caso Raposa Serra do Sol e da Corte Interamericana de Direitos Humanos no caso Mayagna Awas Tingni: direto ao acesso às terras indígenas

Abstract

This thesis aims at a critical analysis from the perspective of Gadamer decisions of the Supreme Court in the case of the Raposa Serra do Sol and the Inter-American Court of Human Rights in the case Mayagna Awas Tingni versus State of Nicaragua, with regard to the demarcation of indigenous lands. From the debate on the constitutional treatment of the right of indigenous lands as a key indigenous collective rights, and the Union's role in protecting those interests, questioned the logic of the right of access to lands in private and collective, as well as the legal treatment of indigenous before the Constitution of 1988. The review Gadamerian of the cases, was the decision of the Raposa Serra do Sol, a paradigmatic judged. Of that judgment, we can extract, by the Supreme Court, a search to legitimize the procedure character by declaring its action within the limits of an argumentative representation, since the main controversies raised regarding the framework of its final decision revolved around call conditions or restrictions imposed by the Minister Carlos Alberto Menezes law, the model established by the Union, the continuous demarcation of indigenous lands. The case of the indigenous community Mayagna Awas Tigni vs. the State of Nicaragua was submitted to the Inter-American Court of Human Rights and aimed to the court statement to say that the Mayagna Awas Tingni has the right to access to ancestral lands. Finally, the analysis of these decisions through the concept of tradition Gadameriano and fusion of horizons, we find that not only addressed the interpretation of the text, but to interpret human history by breaking the positivist decisions tradition and past horizons merger with gift.