A abstrativização do controle difuso de constitucionalidade e a possibilidade de sua conformação à jurisdição constitucional brasileira, sob a perspectiva da crítica hermenêutica do direito

Abstract

This thesis undertakes a critique of Brazilian constitutional jurisdiction tradition, focusing on the abstraction of diffuse constitutional review, as advocated by Brazil’s Supreme Cout (STF), based on the alleged constitutional mutation of article 52, X, of Brazil’s Constitution. The central objective is to analyze the compatibility of this abstraction with Brazilian Law from the perspective of Hermeneutic Critique of Law (Crítica Hermenêutica do Direito — CHD). The thesis is divided into three sections. The first section addresses preparatory elements related to the Hermeneutic Critique of Law (Crítica Hermenêutica do Direito — CHD) and examines the linguistic and theoretical foundations underlying the current model of Brazilian constitutional review. The second section investigates contemporary issues in Brazilian constitutional jurisdiction, such as legal realism, the inadequate distinction between judicial activism and the judicialization of politics, and the inappropriate reception of foreign theories — such as common law precedents and, particularly, constitutional mutation — arguing that these theoretical imports have been politically utilized by Brazil’s Supreme Court to justify a "state of constitutional exception." The third section discusses the institutional crisis of the Supreme Court, linked to its pursuit of self-affirmation as the authentic interpreter of the Constitution, and proposes pathways for the future of constitutional jurisdiction, advocating for the need for an adequate Theory of Legal Decision-Making and a Constitutional Amendment to enable the abstraction of diffuse constitutional review. It concludes that the abstraction, as currently defended by the Supreme Court (STF), is incompatible with Brazilian law, violating the duty of coherence and the integrity of Brazil’s Constitution, and requires formal constitutional reforms for its implementation. The thesis aims to foster a discussion on the abstraction of diffuse constitutional review, ensuring it is not solely dependent on the STF's discretion — even suggesting the establishment of a dedicated procedural mechanism for this purpose. This work is grounded in the phenomenological-hermeneutic "method," inseparable from the Hermeneutic Critique of Law (Crítica Hermenêutica do Direito — CHD).