ANALYSIS OF SUPERVENING UNCONSTITUTIONALITY AND ITS CONFRONTATION BY THE BRAZILIAN SUPREME FEDERAL COURT (STF) FROM THE PERSPECTIVE OF DIRECT ACTION OF UNCONSTITUTIONALITY (ADI) Nº 02/1990

Abstract

This research seeks to understand how Brazil, within the scope of the Federal Supreme Court, in control of constitutionality, from the judgment of Direct Action of Unconstitutionality No. 02 of 1990, ratified the understanding in the sense of disallowing in its legal system the supervening unconstitutionality of laws after the Federal Constitution of 1988. At the time, the foundations expressed by the judges carried justifications of a pragmatic and political nature, essentially based on domestic doctrine and jurisprudence prior to the country's redemocratization. The relevance of this judgment lies in the fact that the paradigm could have been broken under the aegis of the 1988 Federal Constitution, in order to demonstrate the hegemony and hierarchical superiority of the new constitutional order. This is because, at the time, part of Brazilian doctrine and that of other countries supported the viability of constitutional analysis of norms prior to the Constitution. It is noteworthy that the judgment of the Direct Action of Unconstitutionality has as its background the confrontation of the authoritarian legacy of the period of dictatorship and redemocratization in the country, which directs the issue to the field beyond the legal. As a result, the judgment examines intertemporal law and the normative validity between the authoritarian period and redemocratization in Brazil through the methodology of historical sociology.