A adequação da fundamentação das decisões judiciais que modulam efeitos em controle difuso de constitucionalidade: uma verificação da ponderação a partir de uma análise de decisões pesquisadas.

Abstract

This paper supports the hypothesis according to which there are decisions of the brazilian Federal Supreme Court that modulate effects in diffuse constitutionality control are not guaranteed substantiated. It is taken as a landmark to follow the legal provision established in article 489, § 2, of the Code of Civil Procedure, using, to verify the weighting used, Robert Alexy's theory according to which if two rules collide, one must be taken as invalid. However, if a collision occurs between two principles, one principle flows away to make way for the other. The law of balancing states that the permissible extent of non-satisfaction or affectation of one principle depends on the degree of importance of satisfying the other. the reasoning that supports the weighting made assumes inescapable importance to show a rational model for evaluating conflicting principles. This is interesting because it connects Alexy's lessons with the parameter established by the Code of Civil Procedure, in its article 489. very well signify a collision between principles, which makes the applicability of Alexy's theory, which is used, completely compatible. Judgments of the Federal Supreme Court in which there was modulation for reasons of legal certainty were evaluated for the evaluation of the weightings carried out. As for the methodology, the work is descriptive in relation to the purposes. Regarding the means, the research was bibliographical, in the consultation of books and scientific articles, and exploratory, as it relied on the analysis of judgments from the Brazilian brazilian Federal Supreme Court.