Sentenças aditivas na jurisdição constitucional brasileira : o papel criativo do Supremo Tribunal Federal

Abstract

The present work aims to study the judicial decisions doctrinally known as manipulative decisions of additive effects. Specifically, it shall examine how the Italian theory of additive decisions was imported and mutated by the jurisprudence of the Federal Supreme Court. It also seeks to understand how such a decision standard is vital for the effectiveness of constitutional programs and values, hence the legislative omission cannot be considered an insuperable obstacle to the full effectiveness of fundamental rights. In addition, it critically analyzes the parameters followed by the Federal Supreme Court in its jurisprudence when it first begin adopting this type of decision, as well as other parameters that must be followed by the Court in order to guarantee legitimacy in future additive provisions. Finally, it concludes that, if these parameters are followed, the adoption of these decisions in the constitutional jurisdiction, in the trail of greater judicialization of politics and a hypertrophy of the attributions of the constitutional courts, resizes the classical meaning of the separation of powers and leads to a reinterpretation of the ordinary coexistence of the constituted powers, anchored in constant dialogue between the Judiciary and other branches and also between the Judiciary and the society, preserving the balance between the institutional mission of the Judiciary and the democratic principle.