Direito internacional privado, a proteção do ser humano e a falácia do ineditismo constitucionalista e tratadista

• Autor(a) principal: Vasconcelos, Raphael Carvalho de
• Data de Publicação: 2014
• Tipo de documento: Tese
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da UERJ
• Texto Completo: http://www.bdtd.uerj.br/handle/1/9285
• topic: Private international law; Human rights; Fundamental rights; Constitution; Treaties; Direito internacional privado; Direitos humanos; Direitos fundamentais; Constituição; Tratados; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PRIVADO::DIREITO INTERNACIONAL PRIVADO

The academic consensus on the protection of human beingsby -domestic and international- declarations of rightsand stateconstitutions-specificallythe1988 Brazilian Constitution as a recent achievement of law settled the starting pointof this research. A problem which aimedto understand the impactof the aforementioned supposed theoretical revolution related to human rights in recentcenturiesininternational private law was initially established perceiving thatthe Brazilian doctrine had not developedclear parameters for theprotectionof men on the conflict of laws. Fulfilling the methodological requirementsrelatedto the formulation of a hypothesis to a specific problem, the development of the researchdisclosed a surprising result:the hypothesis seemed absolutely inconsistent. The perspective of denying was than adopted. Thehuman being is today, in fact, the center of law. In private international law, however, the announced innovation of that centrality showsthat thisfascination withhuman dignitydistortedthe original reasons which oriented the technique of conflicts. Based on those circumstances, the research was carried out using theinductive-deductive method applying private international law production, the discourse ofprotectionof human beings and constitutional theoriesas a tool to verify thehypothesis proposedto the problemoriginally established. The innovation of thisstudyis not, therefore,necessarily drawn from its content, but from thetheoretical systematizationof the relationship betweenthe doctrine ofprotectionof the individual, definitely embodied by thecurrentBrazilian constitutional andprivate international law. It was intended to demonstrate thatthe impact of the human being discourse in private international lawshouldbe understoodas adialogue andthat the technique is not merelyinducedbyhuman rights-fundamental, but alsoinducetheir recognition.The research wasdivided intothree distinctbut interdependent parts. In the first one, the theoretical underpinningsof private international law are presented. At this point, the theoretical premisesconsidered essentialto the advancementof the results imagined are studied. The second sectionadopts thepredominant classification used by theBrazilian doctrinefor the objectof private international law to build a systematicanalysisof the subjectin itspracticalbias. In the third section, it is shown how thepartial results obtainedgraduallyended updenyingthe initial hypothesisset. It was observedthat ifit were accepted thatthehuman rights discoursehas established itself as an obligatory axiomof law justa few hundredyears ago and that theBrazilian legal systemonlyprotected theindividual from1988 onwards, private international lawshould beunderstood as a precursor,as a system of law that anticipatedthis wholedynamic. It was concluded, in fact,that private international lawhas its originand purpose direct related to the protection of human beingsandthat the system was notonlyinducedby the human rights discourse. It is finally concluded thatthe protectionof human beingsbyprivate international lawas a contemporary or modern achievement denotes a seriousmisconception thatdisregardsthe origins, the foundationsand functions of the discipline.