Mutação constitucional produzida pelo Supremo Tribunal Federal: estudo realizado à luz da Constituição Federal de 1988

• Autor(a) principal: Peixoto, Paulo Henrique Lêdo
• Data de Publicação: 2020
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações do Mackenzie
• Texto Completo: http://dspace.mackenzie.br/handle/10899/26573
• topic: mutação constitucional; Supremo Tribunal Federal; controle de constitucionalidade; interpretação jurídica; ativismo judicial; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO

Constitutional mutation is a process of modification of constitutional texts, being used, more frequently, as a synonym for informal change, that is, a process in which the text of the Constitution remains intact, changing the meaning of the legal norm. In this sense, the dissertation aims to analyze the role of the Brazilian Supreme Court, as an interpreter of the Brazilian Constitution of 1988, in the way it produces constitutional mutation through the interpretation of constitutional rules. The research is carried out through a bibliographic review about constitutional mutation and case studies, embodied in Brazilian Supreme Court rulings, selected from the repercussion in Brazilian society. In the first chapter, the legal literature of the 19th and 20th century is reviewed, from the formalist German doctrine of Paul Laband to the systematization by Hsü Dau-Lin and Konrad Hesse, considering the meanings, classifications and limits of constitutional mutation. In the second chapter, the methods of interpretation adopted by the hermeneutical schools in Europe and the United States are studied. In the third and last chapter, in addition to the presentation of the origins and performance of the Brazilian Supreme Court, a case study is carried out, based on the selection and analysis of four judicial decisions of the Egregious Court, namely, party infidelity, recognition of the stable homosexual union, abstraction of diffuse control and criminalization of homophobia and transphobia. After the case study, it was concluded that in three of the four decisions, the Brazilian Supreme Court, through an active stance, adopted interpretations that violated the constitutional text, configuring an unconstitutional mutation.