A teoria da abstrativização do controle difuso de constitucionalidade à luz das ADIs 3.406 e 3.470

Abstract

The Constitution represents the supreme rule of a country, served as a parameter to the entire legal system of the State, so that any infraconstitutional acts must be in line with its text. However, it cannot be overlooked that a constitution cannot disregard the social context in which it is inserted, under penalty of becoming obsolete, devoid of any real meaning. In this sense, mechanisms for altering the constitution arise, be they formal, through the reform of the constitutional text through amendments to the Constitution, or informal, through so-called constitutional changes. Currently, there is a discourse towards the mutation of art. 52, X, of the 1988 text to support the application of the theory of abstrativization in the diffuse control exercised by the STF, starting to confer efficacy erga omnes to its decisions. In this context, the present study aimed to analyze the possibility of framing the theory of abstraction of diffuse control in the context of direct action of unconstitutionality, based on the analysis of discussions within the scope of ADIs 3,406 / RJ and 3,470 / RJ. From the study, it was concluded that art. 52, X, of the 1988 Constitution, for the adoption of the theory of abstraction in diffuse control, since this would prove to be a true unconstitutional mutation, considering that, by promoting the intended change of the rule, the content of the constitutional text itself would be harmed.