“A febre de decretar”: história da produção de normas pelo Poder Executivo no Brasil (1889-1946)

Abstract

This dissertation investigates the history of the production of norms by the executive branch in Brazil between 1889 and 1946, thus covering the First Republic (1889-1930), the Provisional Government (1930-1934), the Constitutional Government (1934-1937), the Estado Novo (1937-1945), and the transition period (1945-1946). In order to achieve the objective of telling this story, the legal texts themselves and the legal doctrine books of the time were analyzed as sources. From the analysis of these sources, it was possible to conclude that the normative production of the Brazilian executive branch throughout the mentioned period was more intense – quantitatively and qualitatively – during the dictatorial periods, due to greater freedom in the field of legislation, made possible by an inoperative parliament, but also by the political will to conveniently convey arbitrary designs through the law, aiming at the appearance of impartiality and authority that only legal norms endorsed by the State could confer on them. It was also possible to perceive a gap between theory – embodied in legal doctrines – and practice, embodied in the effective actions of the executive branch. Since the Empire, Regulatory Power and the limitations on the ability to issue decrees and regulations were a concept held in high regard by doctrine. In practice, however, abuses were seen in terms of material scope — matters that could not be regulated by this means — and against the very nature of these secondary normative acts, which theoretically could not fail to comply with, limit, or diminish the scope of the commands of the law in the strict sense, produced by the legislative branch. Finally, one can conclude that there is a fundamental difference between the decrees of the Provisional Government of Marshal Deodoro da Fonseca and the Decree-Laws of Getúlio Vargas's Estado Novo, although both exceeded or surpassed the limits traditionally imposed on regulatory power and decrees and regulations, breaking the principle of separation, harmony, and independence between the powers and mitigating the limitation of political power. The closure of Congress in both moments is a similarity. The abuse in the number of decrees was also similar. However, they were two different political projects. The legal, institutional, and political contexts were different between the two periods. Deodoro's authoritarianism in the “Republic of the Sword” did not result in a long dictatorship as in the Estado Novo. Rui Barbosa's liberal Constitution had little to do with Francisco Campos' authoritarian Constitution. In the early years of the First Republic, no type of law was created for use in exceptional situations of necessity or urgency; the government itself was provisional. In Vargas' Estado Novo, however, decree-laws were an important exceptional instrument in theory, but they were used routinely by a government that intended to be definitive and even had staged a coup d’etat to remain in power.