A repercussão geral nos recursos extraordinários e a abstrativização do controle difuso de constitucionalidade

Abstract

The diffuse control of constitutionality, adopted in Brazil since the Constitution of 1891, was, in a certain way, an adaptation of the judicial review from the United States. The Brazilian legal system, however, finds its bases on the civil law, where, at least in theory, the doctrine of stare decisis does not apply. This reality was responsible for the emergence of a more efficient system of control of constitutionality. Therefore, particularly after the 1988 Constitution, the concentrated control system develops in the Brazilian legal order as a way to increase the importance of the role of the Supreme Court in interpreting the constitutional laws. Thereby, the new legal conjuncture demands a review of the classical institutes of the Brazilian control of constitutionality. It is imperative to insert appropriate objective elements in the diffuse control of constitutionality. The legal innovations carried out by the 45th Constitutional Amendment are clear examples of this tendency, known as “abstractiveness”. Through this amendment it was introduced in the Brazilian constitutional system an institute that advocates the binding effect of the precedents as well as an institute that allows the Supreme Court to select only the cases involving general repercussion. Another example is the development of the theory concerning the constitutional mutation of article 52, X, of the current Constitution.