O conceito de quilombo no ordenamento jurídico brasileiro pós-Constituição de 1988

Abstract

This study aims to analyze the construction of the concept of "quilombo" in the Brazilian legal system in the context after the 1988 Federal Constitution. the Magna Carta; of the trajectory of the Brazilian black movement and its pre-constitutional articulation, which had as one of the results the inclusion of quilombola communities in the constitutional text, specifically in Article 68 of the Transitional Constitutional Provisions Act (ADCT), which names them as “remnants of the quilombo communities”. Then the study continued, through bibliographical research, in search of understanding the concepts adopted in Brazil for the term “quilombo”, from the definitions adopted in Brazilian historiography; the resemantization of the term committed through anthropological studies (which established the paradigms of ethnicity and territoriality for the characterization of communities) and the contribution of international treaties to the conception of the term in the legal system. Finally, the infraconstitutional legislation and the jurisprudence concerning the subject were examined. Through bibliographic and legislation research, as well as jurisprudential and documental analysis, the concepts adopted in the legal system were investigated through the norms that aimed to regulate article 68 of the ADCT, namely, Decrees nº 3.912/01 and nº 4.887/ 03 and the Direct Action of Unconstitutionality nº 3.239, filed by the Liberal Front Party in the Federal Supreme Court in order to question the constitutionality of the last rule on the subject. In the action, the discussion on the concept of quilombo was formally disputed in the legal sphere, with several arguments from the parties, the amici curiae and the Public Ministry, which acted as legal costs. The process, initiated in 2004, became final and unappealable only in 2021 and, in addition to establishing the concept of quilombo adopted in the Brazilian legal system in the context of the 1988 Constitution, it demonstrates a way of updating, progressing and integrating the Law with other knowledge and society governed by it.