Cancelamento de súmula vinculante nas novas perspectivas do controle de constitucionalidade brasileiro
AUTOR(ES)
Fernanda Barretto Miranda
DATA DE PUBLICAÇÃO
2008
RESUMO
The subject of this paper is the overruling of binding precedents in the new perspectives of Brazilian constitutionality control. For contextualization purposes, a previous examination of Brazilian constitutionality control is proposed, as well as of the legal concept of binding precedents, including examinations in light of Comparative Law. The constitutionality of binding precedents is not defended without the presentation of essential premises, among which the possibility of such overruling by the Supreme Court challenges the arguments of offense to free legal opinion; inflexibility of the set of precedents and of Law itself; and regress regarding Portuguese settlements, already removed from the Portuguese corpus of rules since 1997, and from the Brazilian corpus of rules since the first Republican Constitution, dated as of 1891. Therefore, one can understand that binding precedents bring new perspectives to the Brazilian constitutionality control, not only as product of the decentralized constitutionality control and mechanism of migration to the constitutionality control focused on the prestige of the ideals of isonomy and legal security, but also as a new constitutionality control object, due to its general and abstract characteristic, which subjects it to the examination of compatibility with the Constitution by a decentralized via. Overall, the introduction of binding precedents in the Brazilian corpus of rules enhances the effectiveness of the constitutionality control system, as it is an effective mechanism at the reach of the Supreme Court, likewise the one exclusive to the Senate, according to item 52, X, of the Brazilian Constitution. Undoubtedly, binding precedents correct the disadvantages of the decentralized constitutionality control, keep its advantages and do not eliminate it as a whole, which seems ideal in a rising trend of preponderant use of centralized constitutionality control which, comparatively, does not enable the protection of the fundamental rights in such a broad manner, causing workload risks, less creativity in decisions, politicization and democratic deficit of the Constitutional Court. In such scenario, the overruling of binding precedents is viewed as a theme of special analysis, in the way it is a fundamental basis for the defense of the constitutionality of the legal concept itself, as well as relating the respective incidence hypothesis and legal effects produced upon the new perspectives of Brazilian constitutionality control
ASSUNTO(S)
direito sumula vinculante controle de constitucionalidade -- brasil binding precedent cancelamento de súmula vinculante constitutionality control
