Reception of norms of international law in the Brazilian Constitutional Experience: Doctrinal Conceptions about Executive Power overlays Between the Empire and the Republic (1824-1988) (original) (raw)

Since the granting of its first Constitutional Charter in 1824, the reception of the norms of international order in Brazilian domestic law has found its broad lines in the constitutional texts. Such phenomenon is presented as a common feature in the two constitutions of the nineteenth century – 1824 and 1891 – as well as in the five from the twentieth century – those of 1934, 1937, 1946, 1967 and 1988. On the one hand, there is a continuous line connecting constitutional texts, on the other hand, the absence of an exhaustive and clear description of the way in which the norms of international order would be received are quite salient. The existence of this gap has resulted, throughout the Brazilian constitutional experience, due to a growing presence of political constraints that, in turn, have led to the insertion and application of international postulates in the domestic legal sphere. These constraints were materialised through frequent overlapping of Executive acts in relation to the other powers, unbalancing the then desired separation of constituted powers. In this context, the aim of this article is to analyse how the normative instruments and doctrinal discourses at the international and constitutional levels were built in the nearly two hundred years of history of the national legal system. Moreover, emphasising the role to be played mainly by the Legislative and Executive in the process of receiving international treaties and conventions, underlining the most successful attempts by the Executive to impose its supremacy, thus undermining the role of the Legislative.