A possibilidade de existência de normas constitucionais inconstitucionais no ordenamento jurídico brasileiro

Abstract

The present scientific study objective to glimpse the plausibilidade of antinomic constitutional ruieses in our legal-constitutional order, subject of heated confrontations in the scope of the native constitutionalism. Using of the methods deductive and exegetico juridico degree, with the manuscript of the Federal Constitution of 1988, doctrines, extracted articles of the Internet and junsprudenciais sentences, it will be focara research in the analysis of the possibility to exist, in the national legal scene, the called the unconstitutional, attempting against themselves for the agreements concerning the thematic one, conforming the research with agreements abalizados and pertinent constitutional ruieses with the logic and the rationality of the system, in this direction, the constitutional ruieses will be observed and the species in which it is divided, the possibility of hierarchy between the norms, as well as the occurrence of collision or tension between principles and the consequent application of form criteria conform it them one to the other, preventing the constitutional cohesion in addition. Outrossim, inside of the technique of interpretation of the text of the Basic Law, its condicionantes principles will be boarded, attempting against itself, in particular, for the principle of the constitutional unit, indispensable mechanism to the integrity and harmony of the constitutional ruieses. In fact, analyzed the theory of Otto Bachof concerning the existence of unconstitutional constitutional ruieses, it results outside of doubts, according to majoritaria doctrine, the impossibility of deriving norms of the Originary Constituent Power to be defendant as unconstitutional, it has seen that the unit of the Constitution and the legai security move away the jusnaturalistica conception from a supralegal order of values. Weil of the truth, what the doctrine admits is the plausibilidade of deriving norms of Emendations, when contrasting with the stony clauses taxing foreseen in the Federal Constitution, to incur into instant unconstitutionality.