Abstrativização do controle difuso de constitucionalidade

Abstract

It's about the abstrativization of the diffuse control of constitutionality in the brazilian legal system. Initially, Brazil, influenced by American constitutionalism, adopted in its 1891 Constitution, only the diffuse system of constitutional review of laws and normative acts. With the advent of the 16th Constitutional Amendment to the Constitution of 1946, in the year 1965, it was introduced the concentrated control of constitutionality, designed by Hans Kelsen and developed in continental Europe, starting, by that change, to coexist the diffuse and concentrated systems of judicial review. The promulgation of the constitution of 1988, there was a strengthening of concentrated control, due to the expansion of the legitimate to propose the direct action of unconstitutionality. Through the 45th Constitutional Amendment, in 2004, it was introduced the institutes of binding precedent and the requirement of general repercussion for the assessment of the extraordinary appeal, which led to the emergence of the theory of the abstrativization of the diffuse control of constitutionality, and with it, the thesis of constitutional mutation of article 52, section X, of the Federal Constitution, developed by Gilmar Mendes.