Fundamental rights of the Yanomami

Image: Markus Winckler


Without questioning capitalism, there will be no legal or philosophical basis capable of preventing the occurrence of new tragedies.

They are regrettable scenes, which turn the stomach and cause indignation in any reasonable person who comes into contact with the tragedy of the Yanomami people, recently published by the major media in Brazil. Malnutrition, hunger, disease, land invasion, murder, rape, all under the negligence and bad faith of a government whose interests are completely detached from the preservation not only of native peoples but also the promotion of dignified human life in general.

The analysis that must be made of the events of the true Yanomami genocide promoted by the government of Jair Bolsonaro, however, must not be limited to a moral judgment only. It is not just a question of the carrying out of evil by rulers of bad nature and bad intentions. Despite these being true findings, the issue must be analyzed from the legal-philosophical perspectives, too, which allow observing the materiality of the social relations that led to the regrettable condition to which the original peoples were subjected.

And, in this sense, it is imperative to point out that there were legal guarantees, including and mainly in the constitutional scope, previously stipulated in Brazil against this kind of civilizational absurdity. Even a ruler ideologically detached from the dictates of what is considered civilization should submit to the Constitution and the law of a country, right!?

Now, the Federal Constitution, since October 05, 1988, is fruitful in providing fundamental rights and guarantees regarding life, health, food security, in general, and, specifically, in relation to the protection of Brazilian native peoples. A quick look at Articles 1, 3, and 5 gives us an idea of ​​the general fundamental rights of each and every human being in Brazil and, in addition, Articles 231 and 232 (unfortunately in a chapter that uses the term “Indians”) , stipulate specific fundamental rights.

Thus, during the Bolsonaro government, there were already constitutional norms that determined that the Union was responsible for protecting and respecting the social organization, customs, languages ​​and beliefs of the original peoples in their lands, in the lands they traditionally occupy (art. 231, “caput ”). There were also norms that guaranteed the use of these lands for the well-being and physical and cultural reproduction of the original peoples (art. 231, § 1).

Consult the main law manuals that deal with the aforementioned theme and it will be observed which rights are considered fundamental due to what they reveal as a determinant “on the structure of the State and society, especially, however, with regard to the position in these occupied by the human person”[I] and that there is a great advance in contemporary constitutional law, because it is the result of “the affirmation of fundamental rights as the core of the protection of the dignity of the person and the vision that the Constitution is the appropriate place to posit the norms that ensure these claims”.[ii]

They are idealistic postures. They intend to impose on reality what the ideal concepts of law produce in the minds of scholars. As they say, where were the fundamental and human rights of the Yanomami during the government of Jair Bolsonaro? How can tragedy be installed in a State completely standardized to protect and promote the dignity of this people?

Only a critical analysis of the specific materiality of social relations can provide an adequate answer in the legal and philosophical spheres to such questions.

The government of Jair Bolsonaro, considering all the disparities and intellectual idiosyncrasies of its protagonists aside, was the development of a power project aimed at the reorganization of capitalist production relations in Brazilian society. An acceleration of the measures demanded by the socioeconomic forces that promoted the coup d'état against President Dilma Roussef, in 2016, brought Michel Temer to power illegitimately and culminated in the election of Jair Bolsonaro, in 2018.

“As much as the crisis, the core of the coup is economic: today's national and international capitalist accumulation seeks to resolve itself through greater plundering, engendered by bourgeois factions. The coup movement from the crisis is an onslaught of the capitalist class struggle against the working classes. Increased exploitation of work, financialization of social security and privatization are its immediate milestones. If politically the coup expanded and adapted to the circumstances, starting with the traditional Brazilian right to consolidate itself in the extreme right, the fractions of capital, even if they originally had other preferences, command the movement of the coup without disjunctions when it ends in Bolsonaro. The margins of their game have no prior moral reserve against reactionary extremisms”.[iii]

Indeed, capitalism has one, and only one, general law: the accumulation of capital. The following are not priorities under capitalism: life, the dignity of the person, food, health, native peoples. Law is one of the social forms through which capitalist social relations are built, maintained and reproduced and, therefore, law is a structuring part of capitalism.[iv] Fundamental rights, as a consequence, never overlap with the economic demands of capital.

To the question: where were the fundamental and/or human rights of the Yanomami during the government of Jair Bolsonaro, one must answer: they were there, positive, just as they remain today. That is, its positive existence in constitutional norms in no way altered, influenced and, much less, prevented the exploitation of Yanomami territories by the economic interests of agribusiness and mining to be carried out to the absolute detriment of lives, dignity, health of the original peoples. The Yanomami tragedy is the action of the economic groups that demanded it and that was carried out by a government hostage to their interests.

Still, in capitalism there is no territory as an absolute formation of protection for any person. To the cynical and idealistic proposition of the legal doctrine that territory “is not a notion that can be picked up in the natural world, but in the legal world”,[v] materialist scientific evaluations overlap, such as that of the Brazilian geographer Antonio Carlos Robert Moraes, who presents the understanding that territory is, at the same time, a “dialectical articulation between the material construction and the symbolic construction of space, which unifies processes in the same movement”. economic, political and cultural”.[vi]

Therefore, under capitalism, the notion of territory is subject to the role played by socioeconomic interests in a given area, which Moraes calls, especially in light of the Brazilian example, “territorial funds”,[vii] that is, the territory is understood by the dominant groups and by the rulers submitted to them as true reserves available for the economic activity of appreciation and accumulation of capital – for the economic activity necessary to earn money and make a profit. Full stop.

The Yanomami territory, therefore, under a government like that of Jair Bolsonaro, mobilized for the interests of capitalist fractions destined for agribusiness and mining activities, therefore, was seen, understood and submitted as a mere reserve for the exercise of economic activity, in to the detriment of all the life, culture, strength and relationships that existed there among the original people. In short, the territorial fund needed to be “cleaned” of the existing Yanomami life there.

The tragedy awakens us to the human side of the losses and misfortunes suffered by the Yanomami. It should also wake us up to the everyday tragedy that is capitalism, which, when necessary, promotes genocide and whatever atrocities in the name of the God-Money. Without questioning capitalism there will be no legal or philosophical basis capable of preventing the occurrence of new tragedies, unfortunately.

*Leonardo Godoy Drigo is a doctoral candidate in Philosophy and General Theory of Law at USP.


[I] SARLET, Ingo Wolfgang. MARINONI, Luiz Guilherme. MITIDIERO, Daniel. Constitutional law course. São Paulo: Revista dos Tribunais, 2012, p. 268.

[ii] MENDES, Gilmar Ferreira. WHITE, Paulo Gustavo Gonet. Constitutional law course. 10th ed., São Paulo: Saraiva, 2015, p. 135.

[iii] MASCARO, Alysson Leandro. Dynamics of the crisis and the coup: from Temer to Bolsonaro. In Left Bank. Boitempo Magazine, nº 32, 1st half of 2019, p. 26.

[iv] See, in this sense, for all: MASCARO, Alysson Leandro. State and political form. São Paulo: Boitempo, 2013.

[v] TEMER, Michael. Federal Territory in the Brazilian Constitutions. São Paulo: Revista dos Tribunais, 1976, p. 04.

[vi] MORAES, Antonio Carlos Robert. Territory and history in Brazil. 2nd ed., São Paulo: Annablume, 2005, p. 59.

[vii] On the subject, see: MORAES, Antonio Carlos Robert. Historical geography of Brazil. Capitalism, territory and periphery. São Paulo: Annablumme, 2011.

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