Anulação e controle das normas jurídicas : uma análise a partir da ação direta de inconstitucionalidade
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Data
2016-06-10
Autores
Silva, Yuri de Oliveira Dantas
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Universidade Federal do Espírito Santo
Resumo
The positive law system, from the perspective adopted, has the pyramidal structure (Kelsen), where a norm seeks its foundation of validity in other legal norm, which is higher hierarchically. Then the problem comes: the prescriptive statements that lose their foundation of validity no longer belong to the current positive law system? This problem is analyzed by the method of logicalsemantic constructivism, with a normative perspective, specifically based on HANS KELSEN, LOURIVAL VILANOVA and PAULO DE CARVALHO BARROS. We analyze the nullity norm created by the Supremo Tribunal Federal in the Direct Legal action of Unconstitutionality. If this norm removes the validity of the annulled norm, the norm that seek its foundation of validity in this annulled norm remain valid? To answer the problem these hypotheses were tested: i) the norm baseless validity no longer belongs to the positive law system, so there is an automatic expulsion of this system; ii) the norm that belongs to the positive law system can be considered invalid from the beginning, and is irrelevant whether or not the foundation of validity because it never belonged to the system; iii) the norm without valid foundation remains belonging to the system. The hypotheses were tested and it was concluded that the norm of law remains valid even with the loss of its foundation of validity. The specific individual norms lose their foundation of validity by annulling norm created in ADI seat are in: judicial review term susceptible to rescissory action, not susceptible to rescissory action. The general and abstract norms that seek its foundation no validity in annulled norm remain valid because the standard is only explicitly removed from the positive law system. To admit the contrary position is to admit that the interpreter takes the norm for his act of interpretation, which would make us into reprehensible confusion between the planes of the object and the scientist's plan; division that permeates the entire work.
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Direct Legal action of Unconstitutionality , Foundation of validity , Norm , The positive law system , Logical-semantic constructivism , Ação Direta de Inconstitucionalidade , Fundamento de validade , Norma jurídica , Sistema de direito positivo , Constructivismo lógico-semântico