Arquivo para June 4th, 2018

The dualism and the state

04 Jun

Perhaps in no area is dualism as “unjust” as in law, it is so true that for international law there are two theories: dualism and monism.
The dualist theory argues that international law and domestic law (that which concerns the State in relation to others) are two totally distinct and independent systems, the latter regulates relations between states and, therefore, is not obligatory among individuals, allusion to idealism is clear because the “state” as well as the “individual” are “ideal” elements.
The monist theory, on the other hand, argues that law is unique both in the relations of the State with society and in relations between States, and this current is divided into two: the first that is called internationalist monism, foreseeing that there are norms of international law to domestic law, prevails in the domestic law, and the other called Nationalist Monism that argues that in this same situation, the primacy is of the Internal Law over the International, in times of exacerbated nationalism this is important to be debated.
Brazil in its Constitution is silent (in law is silent) as to the theory adopted, but the position of the Federal Supreme Court is in the sense of a moderate Dualist Theory, receiving the International Treaty the Status of Ordinary Law, by constitutional provision, except the Human Rights treaties, whose 2nd. Of Article 5. From the Federal Constitution it attributes efficiency to normal supralegal, that is to say that it is superior to the law in the legal hierarchy.
As a matter of fact, we must have international laws beyond the general UN human rights provisions, the humiliations and prejudices with foreigners in many countries of the world have generated an odious relationship that often explodes in violence.
The need to discuss these “doctrinal” questions is time, and we should no longer speak only in the United Nations, but in a treaty of “unity” between nations, something in the line that already goes to the European Union, maybe a good way, would be the Union of Latin America, the Pan-African Union and perhaps the Asiatic, recomposing the fragmented globe to nations.
By no means does it mean the submission or denial of local cultures, quite the contrary, international agreements may prevent the submission of some “more prevalent” crops be it financial, colonial, or warlike over others.
You have to look at the planet as a whole and think about world citizenship.