Unconstitutionality by omission and institutional dialogue: an analysis of the dynamics between the supreme federal court and the legislative in abstract judicial review

• Grant number: 16/23807-5
• Support Opportunities: Scholarships in Brazil - Scientific Initiation
• Effective date (Start): April 01, 2017
• Effective date (End): March 31, 2018
• Field of knowledge: Applied Social Sciences - Law - Public Law
• Principal Investigator: Conrado Hübner Mendes
• Grantee: Bernardo Assef Pacola
• Host Institution: Faculdade de Direito (FD). Universidade de São Paulo (USP). São Paulo , SP, Brazil

Abstract

Judicial review of legislative omission is, without doubt, an interesting and controversial subject, which has received considerable attention from scholars of jurisprudence. There is, however, a lack of studies based on theories of institutional dialogue about this subject. Frequently, the idea of supremacy of the Constitution seems to imply a supremacy of the Supreme Court: the Court would have the heroic mission of acting against the legislator in defense of the full realization of the Constitution, effectively forcing the legislator to create the lacking norm. This focus impoverishes the debate: by presupposing an unattractive normative basis, fixated on the rhetoric of the last word and of judicial supremacy, it neglects the important role that the Supreme Court is capable of performing in catalyzing and molding the debate over the Constitution, provoking Congress to deliberate about constitutional values. This paper intends to build a theoretic foundation for the unconstitutionality by omission based on the premises of the theories of institutional dialogue, establishing an ideal type of deliberative interaction between the Supreme Court and Congress. Based on this parameter, the paper will proceed to evaluate the dynamics of the interaction between these institutions in Brazil, by performing a substantial analysis of the legislative response in the abstract judicial review of legislative omission. Is the Legislative attentive to the Supreme Federal Court's decisions? Does it take into consideration the Court's arguments? Is the Court capable of provoking Congress into the deliberation of topics regarding which it was inert, despite the constitutional commandment contrariwise? As we attempt to respond to these questions, we hope to find signs - though not empirical proof in a stronger sense - that there is dialogue, as well as to identify possible hindrances that deviate these dynamics from the deliberative ideal. (AU)