Controle de constitucionalidade e o direito constitucional intertemporal: a possibilidade de decretação de inconstitucionalidade de lei anterior à CFRB/88 em sede de controle difuso

Abstract

The research theme of this study runs through the possibility of decree of unconstitutionality of a law prior to the 1988 Constitution in Diffuse Control. The general objective is to analyze, in the light of Brazilian Constitutional Law, the concept of constitution, the forms of realization of constitutionality control in Brazil, the relation of pre-constitutional law to the advent of a new constitution, including the phenomena of reception and not reception, and which standards can be subject to control in the fuzzy system and in the abstract system. It is known that the Federal Constitution sits at the top of the normative pyramid, being the validity basis of the entire legal system. Thus, it is clear that all other laws or normative acts must be in agreement, materially and formally, with the letter. The problem arises when one is faced with a new constitution and there are, in the pre-existing legal order, several laws and normative acts in force. The solution is found by Intertemporal Constitutional Law, which will seek, through a judgment of material compatibility, to select the norms that will continue to produce effects. At the same time, the question arises about the possibility of realizing control of constitutionality of pre-constitutional norms. The present work aims to indicate and delimit the hypotheses of control of the norms previous to the Federal Constitution of 1988, bringing doctrinal visions and jurisprudential understandings for the solution of the thematic.