“Fecho de Pasto” and “Fundo de Pasto” Communities and Brazil’s Federal Supreme Court: An Insight Based on Fraser

Abstract

This article examines the Brazilian Supreme Court’s decisions in Direct Action of Unconstitutionality No. 5783 through the lenses of intersectionality and Nancy Fraser’s theory of justice. It asks whether the majority opinions, despite declaring unconstitutional the imposition of a final deadline for fundo e fecho de pasto communities to request land regularisation and certification of recognition, rely on implicit discursive tools that partially silence intersectional forms of oppression. Existing scholarship has not sufficiently addressed how constitutional adjudication may formally protect traditional communities while reproducing discursive patterns that obscure the overlapping dimensions of territorial, social, and cultural marginalisation. This article fills that gap by analysing the judicial language used in the Justices’ opinions and by assessing its relationship with Fraser’s categories of redistribution, recognition, and representation. The study adopts a jurisprudential analysis method, supported by indirect documentation, bibliographical research on Fraser’s theoretical framework, and documentary research on the Brazilian Supreme Court’s rulings in Direct Action of Unconstitutionality No.5783. It finds that Justice Nunes Marques’ opinion employs explicitly asymmetrical discursive tools, while the remaining opinions, although reaching a rights-protective outcome, remain marked by linguistic tendencies that do not fully incorporate an intersectional understanding of oppression. The article contributes to constitutional law and critical legal scholarship by showing how judicial discourse may preserve Eurocentric assumptions even when producing formally emancipatory decisions.