Perspectivas sobre um necessário controle de constitucionalidade difuso das súmulas vinculantes

Abstract

This paper is a critical analyze about the possibility – and necessity – to insert the binding judicial precedent under the control of constitutionality, more specifically, that one exercised diffusely in all constitutional jurisdiction levels. Thus, the binding judicial precedent is characterized as a real subordinate normative text, which should not be seen as the interpretative choice, unique and unquestionable, about some theme decided by the Supreme Court of Brazil exercising the constitutional jurisdiction. In fact, it should be seen as another norm, applicable prima facie, requiring the mediation of the interpreter, who will apply its in case being judgment only if it is appropriated, according the law hermeneutic and second the paradigm of the rule of law. Then, once characterized the binding judicial precedents as normative texts, like all the others normative texts, they should be under the control of constitutionality, specifically that one exercised diffusely in all constitutional jurisdiction levels and it’s pointed the situations that could be recognized incidentally the unconstitutionality of the binding judicial precedent (in the case of unconstitutionality formal, constitutional reform, constitutional mutation or even as a result of the constitutional hermeneutic) to open an important way to improve an pluralistic interpretation of the Constitution.