Contribuições aos limites da mutação constitucional sob a perspectiva da teoria estruturante de Friedrich Müller

Abstract

The present study aims to explore the informal constitutional changes by judicial interpretation and to establish possible limits to the phenomenon. Differently than formal changes (constitutional amendments), the constitutional mutation are not expressed in the legal text, but occurs as a means of adapting the constitutional to the changes of the society. For the reason that, the constitutional norms with their structure and semantic opening make possible this interaction with reality. Starting from the premise that the constitutional norm is different from their text, being composed of the normative ambit (Normbereich), the relevant facts that surround that norm and the normative program (Normprogram), as the result of the interpretation of the linguistic data), as a consequence of the process of concretization. In this sense, according to Friedrich Müller, the concretization is the creation of the legal norm in the concrete case. With this, to understand that the constitutional mutations occur when there is change in the normative ambit in the moment of the concretization of the norm in a concrete case. The analysis will develop from the historical and doctrinal perspective of the object of study, identifying the insufficiency of the analyses of the limits to the institute. Through deductive process, which is from a general premise, to reach a specific answer, using the bibliographic review on the subject and relevant judicial decisions to exemplify the institute. In this way, try to offer parameters for the informal changes of the Constitution, in order to preserve the stability of the legal order in observance of the fundamental rights and guarantees.