A abstrativização do controle difuso e a manutenção constitucional: os efeitos da decisão do Supremo Tribunal Federal em via incidental.

Abstract

In view of or congestion of demands brought to the Supreme Court, its role as interpreter of constitutional rule and inability of judicial control, a Supreme Court has been acting as activist, modifying the legislation using derivatives mechanisms from the constitutional hermeneutics, getting closer and closer to the foundations of common law, aiming to apply more effectiveness to the application of law in against the evolution of social paradigms and as demands of these derivatives. Such approach can be visualized in the positions taken by the court regarding the adoption of the theory of transcendence of the determining motives, and the effect linked to the incidental decision of the court that declares unconstitutionality of the law or normative act, being it the study of the themes and cases that underlie it, condition and model as STF positioning changes. In this sense, research about the abstraction of the diffuse control of constitutionality in the light of the informative 886 of the Supreme Court, in order to observe its implications in the legal system. Therefore, it is necessary to understand as nuances that distinguish the study of the Constitution from the other areas of law, to understand constitutional hermeneutics and to analyze a constitutional change of item X of article 52 of the charter. Then, a bibliographic and documentary research will be carried out, using the hypothetical and deductive approach method, available for historical-evolutionary analysis of the exposed themes. Given this, observe whether the Constitution is a seed from which all other branches of law will be born, enjoying true supremacy or ordination, as well as analyzing the origin of constitutionality control and its application in the Brazilian legal system. The different aspects and postulates of constitutional hermeneutics are verified, as well as the principles and limits of application, passing through the phenomenon of constitutional mutation and concluding by observing the diffuse control of constitutionality in the light of the 1988 Constitution, a theory of abstraction and application, which deals with the constitutional change applied to incident X of Article 52 of the constitution, or imposes a finding that the change is unconstitutional because it violates either the principle of fairness, a separation of powers and the constitutional order.