Decolonial turn and the law: beyond colonial restrains/Giro Decolonial e o Direito: Para Alem de Amarras Coloniais.
| Autor | Lima, Jose Edmilson De Souza |
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Introduction (1)
Brazilian reflections are historically developed from an Eurocentrical epistemological center which downplays local and regional knowledge, especially in the Latin-American territories which have been colonized (2). The legal system reflects this assumption by using principles and rules resulting from hegemonic European theoretical constructs as its axiological and normative bases. Therefore, even though conflicting norms are increasingly less frequent and validity is a fundamental factor of all norms, such norms lack material effectiveness, and are clearly insufficient in view of society's extreme inequalities.
The objective of modern constitutions, including the Brazilian Federal Constitution of 1988, may be summarized in the promotion of the well-being of men, so as to ensure them the conditions required for their own dignity, including the protection of individual rights and of the minimum substantial requirements to perpetuate a decent life.
Nevertheless, by placing the Man (and only the Man) in the center of constitutional concerns, modern constitutions promote the imperativeness of a neutral universal speech to the detriment of the diversity of local knowledge. Inclusion and otherness turn into variables that require further questioning of the knowledge based on regionalism and the marginalization of the knowledge left out of the epistemic centers considered relevant.
We aim to bring the legal sphere (3) closer to the concept of decolonization (4) of knowledge, with the purpose of enhancing the comprehension of the constitutional principle of dignity, thereby adding to it the emergence of multiple constitutional perspectives compatible with the search for the material effectiveness in Brazilian reality.
From a deductive-dialogical methodological approach, eminently bibliographic, the critical tendency herein demonstrated highlights not only a constitutional exegesis that acknowledges its own limitations, but also proposes a fertile path of research of the intersections of otherness, effectiveness of norms and epistemological liberation.
Precisely because of the amalgam created by the legal sphere, researches concerned with interculturality are welcome as they strengthen social shields and grant an active voice to those forgotten by the modernity goddess in its eurocentrical version.
We seek to conclude that there are not sufficient approaches on the decolonial turn and on alternatives to development which expand the hermeneutical method from a view which breaks with the anthropocentrism and the reductionism of the homogeneous knowledge.
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Colonization and its Reflections
In order to break Brazilian epistemological shackles, one must analyze how colonization of knowledge was possible, and, more specifically, from a paradigm of conquest, how the eurocentrical thinking created a legacy of social inequities and deep inequalities resulting from a line of thought which prevents the comprehension of the world from the world itself.
Thus, "[...] since the conquest of the Americas, the projects of Christianization, colonization, modernization and development conformed the relations between Europe and its colonies in clear opposition" (CORONIL, 2005, p. 58). By evoking an indistinct process of development, social and political agents become indefinite beings subjected to the hegemonic sources of power.
From a colonial standpoint, mankind would be divided in species and subspecies. (MB EM BE, 2017, p. 119), there being a hierarchy to differentiate and separate men, based on their peculiarities, through legal instruments that allow one to keep a distance from other beings.
Colonizers operate under different conditions and configurations of a relational universe of European domination of other peoples around the globe. The process of colonization, on its turn, encourages a distancing from reality by adopting a universal identity that does not reflect current Brazilian aspirations.
Colonial domination marks Latin-American history not only with the purpose of transforming reality (ARAUJO, 2008) but also of recounting it. From an eurocentric perspective (5), modernity would be the liberation from immaturity based on a rational effort that would result in a new development to be imposed upon mankind.
The binary perspective disseminated by eurocentrism imposed a flow of colonial expansion aimed at dominating the globe. "[...] beyond European enclosure, the state of nature rules, - a state without faith or law" (MBEMBE, 2017. p. 107). Through a fallacious flow which culminates in Europe and [the assumption] that the differences between the European and non-European human beings would stem from a natural difference, and not from power, enabled the founding of the hegemonic perspective which must be discussed.
This biological perception was a fundamental constituting element of relations of domination. The dominated peoples, hence, based on phenotypical characteristics, had their cultural and epistemological contributions put aside in favor of a Eurocentric universal rationality.
In this aspect, eurocentrism managed to transit through the other continents to legislate on the use of reason, showing how their conceptions of the Law, State and Culture were the only possible ways to transcendentality and evolution.
In the beginning, all was America, that is, all was superstition, primitivism, fight of all against all, and state of nature. The last stage of human progress, achieved by European societies, is built, on its turn, as the absolute other to the first and at its counter light. (CASTRO-GOMEX, 2005b, p. 84). The coloniality of powers, as a constituting factor of modern liberal reality is founded upon a science that considers the dichotomy space/time, placing the European continent as the starting point for the growth of knowledge. It is possible to state that "coloniality constitutes modernity" (MIGNOLO, 2005, p. 44).
Under an Iberian hegemony, the epistemological colonization, taking into account all social elements which Quijano (2005) highlights, has developed as an hegemonic thought to define a world order which would stem from discussions, objects and subjects delineated by a tension solely of the European continent.
The process of discovery (6) of the American continent and its individuals set up a direction to get to know the Other not to understand him, but to dominate him. "The basic relation among the centers and peripheries was of sack and exploitation, both of labor (indigenous and later on, African) and of natural resources" (COLACO, 2012, p. 127). It is possible to state that, as a Eurocentric paradigm, modernity is identified, in the end of the fifteenth century, with the conquest of the American continent and the Atlantic Ocean. Therefore, "Latin American enters Modernity (long before North America) as the other face: dominated, exploited and undercover" (DUSSEL, 2005, p. 28).
The colonial world does notice the conflicting and diverse economic, social, legal and political manifestations that transform the social structures of a given region. "The dominating view is not, therefore, equivalent to the social structuration itself but to the way in which a group, which imposes the dominating view, conceives social structuration" (MIGNOLO, 2005, p. 43). Relations of power become asymmetric and active participation of differences is reduced, thereby justifying the decolonial intentions which break with the hegemonic inclinations of power.
In spite of its global character, it is evident that coloniality of power is generated in different places and times, in specific and ever-changing ways, whose constant historical transformations enable the perpetuation of those movements and their foundations: conflict, exploitation and domination.
The colonial potentate is replicated in numerous ways. First, by inventing the colonized. The colonizer has made and continues to make the colonized. After, by crushing this invention with non-essentiality, turning him into a thing, an animal, a human being in a perpetual state of becoming. And lastly, by constantly injuring the humanity of the subject, thereby multiplying the blows to his body and attacking hits brain to create wounds. (MBEMBE, 2017. p. 188) The cultural expressions of the dominated are extirpated and hidden since the universal character of the Eurocentric knowledge tends to deny the Other that does not correspond to the manifestations of hegemonic power (FOUCAULT, 2011) which lay the foundations of the epistemological ground. The manifestations of colonization compel the dominated to question constantly the reality that surrounds him.
The colonization project discards regional values in favor of Eurocentric civilization ethics. The Other is captured and reproduced as "an absolute negation, as the farthest point in the horizon" (HARDT, NEGRI, 2001, p. 142). The barbarism against the dominated individual is seen as a machine of suppression of identity and otherness, operating from a universalizing optic. "The Other has been imported to Europe--to natural history museums, public exhibitions of primitive peoples and so forth--and thus made increasingly available to popular imagination." (HARDT, NEGRI, 2001. P. 142)
Therefore, the expressions of the dominated are considered as traditional and contrary to the development proposed by European science thereby denying them the possibility of creating their own views of the world. "By framing them as an expression of the past, their contemporaneity is negated."
The decolonial project believes that freeing the otherness is an essential factor for the accomplishment of alternatives to the development and hermeneutical comprehension of the proposed norms. Hence, it would be an achievement of solidarity between "[...] Center/Periphery, Woman/Man, diverse races, ethnicities, classes, Mankind/Earth, Western Culture/ Cultures of the ex-colonial world, etc., not by pure negation but through...
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