The issue of the juridical subject has been a topic of discussion as part of the rethinking of the classical jurisprudential concepts in Brazil. In particular, some authors have written about the “repersonalization of private law.” This has opened a promising path of inquiry regarding the legal subject for at least four major reasons. First, continental private law is the classical field to discuss the subject of rights. Second, the focus of private law remains the concept of the person, opening an important space to recover the moral philosophy in law. Third, the repersonalization of private law demonstrates the necessity of going further than modern natural law theorists in the discussion of the concept of person, and philosophical hermeneutics provides guidance for contemplating the human person’s concrete, historical and relational dimension. Finally, this direction has affinities with the new constitutional law that seeks to change society and improve the republican and communal features of civic life.
This Article discusses these four aspects, guided by a specific and peculiar Brazilian issue: the rights of indigenous persons. This issue provides a privileged point of view to discuss juridical subjectivity. The analysis will draw from the theoretical approach of Martin Heidegger’s philosophical hermeneutics to frame a discussion of the interpretation of the Brazilian Constitution regarding indigenous rights.
This discussion will demonstrate that modern developments in the Brazilian Constitution have changed the paradigm for analyzing indigenous rights, and that individuals should understand and further develop this paradigm in order to recognize and respect the alterity of the indigenous peoples.
10 Nev. L. J. 646 (2010)
Moreira da Silva Filho, Jose Carlos
"The Existential Subject of Rights and Private Law: The Example of the Indian Issue in Brazil,"
Nevada Law Journal:
3, Article 5.
Available at: http://scholars.law.unlv.edu/nlj/vol10/iss3/5