Novação legislativa: uma crítica ao controle de constitucionalidade das leis pré-constitucionais no Brasil

Abstract

The present research promotes a dogmatic-constitutional of the normative relation between the pre-constitutional laws and the 1988 Brazilian Constitution. This analysis has as its starting point the analytical study of the legislative renewal phenomenon usually known as law reception, of which manifestation field happens now of the promulgation of a new Constitution when substituting for another one then in force. The constitutional supremacy is a proposed axiom of the contemporaneous system, and expresses the ultimate basis of the normative validity. Therefore, the introduction of a new constitutional order implies necessarily in the renewal of the normative complex in order to adequate it to the new validity parameter. However, such innovation by the regular legislative process established by the new constitutional order presents a not overcome practical difficulty, which is worked out by means of the principle of the legislative continuity. Every pre-constitutional law legislation must be submitted to the hermeneutic-constitutional rules. An active debate about the constitutional doctrine and jurisprudence has already taken place on the juridical nature of the negative court of consistency of the pre-constitutional law with the new constitutional regulations. The results obtained directly influences in the selection of the defense procedural mechanisms of the Constitution in force. Thus, this research intends to resume this debate with the the sole principle of making a critical analysis of the present control model of the pre-constitutional law practiced in Brazil