A aplicabilidade do estado de coisas inconstitucional à ordem jurídica brasileira: entre a máxima efetividade dos direitos fundamentais e a separação dos poderes

Abstract

The paper examines the thesis of the unconstitutional state of affairs, seeking to investigate its applicability to the Brazilian constitutional order. By means of jurisprudential research, observing the inductive method, it identifies the remote origin of this decision-making technique in foreign law, appreciating, next, the decisions rendered on the matter by the Colombian Constitutional Court, responsible for its systematization. The movement of incorporation of the thesis by the Brazilian constitutional order is object of the next step of the investigation, with the examination of the decision pronounced by the Federal Supreme Court in the judgment of the ADPF nº 347/DF. Then, in the light of the hypothetical-deductive method, observed the doctrinal research, is exposed the theoretical-normative foundation of this technique in Brazilian Law, defending the understanding that it represents the culmination of the constitutional doctrine of effectiveness. After, the study compiles the main criticisms directed at the thesis of the unconstitutional state of affairs by the homeland doctrine, concluding that the objections adduced are inadmissible, in view of the strict assumptions of incidence and limits imposed on its application. Finally, it outlines the prospects for the final judgment of ADPF nº 347/DF and concludes by the adequacy of the thesis of the unconstitutional state of affairs to the guarantee of the effectiveness of the Brazilian Constitution.