Teoria monista humanista: reflexões acerca da hierarquia dos tratados internacionais sobre direitos humanos incorporados no ordenamento jurídico brasileiro

Abstract

The imperative of the integral protection of the human being has resulted in the internationalization of human rights. In order to do this, both nationally and internationally, human rights standards were essential to ensure the dignity of the human person. Brazilian Constitutionalism promoted an opening of the constitutional order to the norms of human rights foreseen in international treaties, through numerous provisions of the Constitution of 1988. However, in view of the consequent limitation of State Power that the normative superiority of these rights imposes, four theses have emerged to defend the status of international human rights norms incorporated in the legal order of the country: thesis of legality, thesis of superconstitutionality, constitutional status and thesis of superconstitutionality. Guided by a "supposed Supremacy of the Constitution in the face of international norms," the Brazilian Legislative and Judiciary Powers coined a janicéfalo model of incorporation of these norms: supralegal status (above ordinary laws and below the Constitution) and constitutional status (equivalent to the constitutional amendment). Such a model is diametrically opposed to the adoption of a monistic humanistic approach to law, which stresses the prevalence of the most favorable human right to guarantee the effectiveness of the protection of the dignity of the human person, regardless of the normative origin.