Relações entre direito internacional e direito interno: das teorias clássicas dualista e monista ao transconstitucionalismo

Abstract

The theme of the relation between juridical orders, specifically between the national order and the international order, has been studied at least since a century. The main theories about this theme were developed at the beginning of 20th century and still today they serve as fundament for the courts in the solution of juridical problems which involves different juridical orders. While the dualist theory considers the existence of two different juridical orders, the national and the international, the monist theory considers the existence of only one juridical order. However, due to the globalization phenomenon, which implicates the rising of a worldwide complexification of the social relationships, some juridical problems emerge, which involve directly human rights or limitation or organization of power issues, that acquire a solution by different juridical orders. On the one hand, the classical theories indicate particularized solutions that don’t solve the conflicts between jurisdictions. On the other hand, some theories appear which look for conciliatory solutions between different juridical orders, such as the transconstitutionalism. Due to the emergence of transconstitutional problems, it is necessary to create dialog mechanisms between the juridical orders in order to solve these problems without however a destruction or blockage of the involved orders.