STABILITY OF DECLARATORY CONSTITUTIONALITY DECISIONS: WHEN AND HOW AN ANALYSIS OF THE UNCONSTITUTIONALITY OF A PREVIOUSLY LAW DECLARED AS CONSTITUTIONAL SHOULD TAKE PLACE

Abstract

We approach the hypothesis of rediscussion by Brazilian Federal Supreme Court of a law already declared as constitutional in abstract control and its relation with the institute of the res judicata, with the conclusion that there is stability in the declaratory decisions, but not absolute, considering the risk of petrifying the constitutional interpretation. We argue that the rules set forth in CPC/2015 on overruling precedents may serve as a guide for the definition of when and how a new analysis of the (un)constitutionality of a previously law declared as constitutional should take place.

Keywords

• constitutional jurisdiction
• abstract control of constitutionality
• res judicata
• procedural stabilities
• precedents