A abstrativização do controle difuso de constitucionalidade : uma análise sobre a competência do Senado no controle concreto

Abstract

This paper analyzes the theory of abstraction of diffuse control focusing on the constitutional competence of the Federal Senate to suspend the execution of a law declared unconstitutional by a final decision of the Supreme Federal Court. To this end, we visit the historicity of the constitutionality control institute, from its modern conception to its consolidation in Brazilian democracy today. Given that Brazilian doctrine has always worked with a tight separation between concentrated and diffuse control, even though the control of national constitutionality is mixed, the viability and (in)constitutionality of admitting binding efficacy and ERGA OMNES are questioned for decisions in matters of concrete control, based on overcoming the traditional understanding of the institute of senatorial suspension. This study, based on doctrinal and jurisprudential research, presents the current paths for an incidental declaration of unconstitutionality in the scope of the Supreme Court to be endowed with ERGA OMNES and binding effects, characterizing the theory of abstraction of diffuse control as a gender, analyzing its species, its reflections on the role of the Senate in diffuse control and its (im)possibility in view of the limits to the phenomenon of constitutional mutation.