DIREITO CIVIL-CONSTITUCIONAL E CONTROLE DE CONSTITUCIONALIDADE DAS LEIS: POR UM DIÁLOGO NECESSÁRIO

• Autor(a) principal: Silva, Rodrigo da Guia
• Data de Publicação: 2021
• Tipo de documento: Artigo
• Idioma: por
• Título da fonte: Revista da EMERJ (Online)
• Texto Completo: https://ojs.emerj.com.br/index.php/revistadaemerj/article/view/364
• topic: Direito civil-constitucional; Controle de constitucionalidade; Regras e princípios; Ponderação; Derrotabilidade; civil-constitutional law; constitutional review; rules and principles; balance; defeasibility

The scope of this study is to promote a dialogue between the methodology of civil-constitutional law and the Brazilian system of constitutionality review, with special focus on the constitutionalist doctrine proposals aimed at justifying the exceptional overcoming of a legal rule-norm. In this endeavor, certain theoretical premises relevant to the present study will be delimited, notably with regard to the relationship between the notions of normative statement and norm with the notion of concrete case order, as well as the current understanding of the rules and principles as distinct (although complementary) normative species, both subject to the incidence of the balancing technique. Afterwards, some aspects related to the insufficiency of the abstract control of constitutionality will be reviewed. In the end, the study will review the main theoretical propositions designed to justify the said exceptional overcoming of the rule in cases where its strict application would produce a result incompatible with the Constitution, seeking to highlight the compatibility between the purpose usually underlying the proposals developed in constitutionalist doctrine and the postulates of the methodology of civil-constitutional law. The study adopts the logical-deductive method, based on bibliographic and jurisprudential research regarding Brazilian law.