SILÊNCIO CONSTITUCIONAL: A INADEQUAÇÃO DA TEORIA DO SILÊNCIO ELOQUENTE PARA INTERPRETAÇÃO DA CONSTITUIÇÃO FEDERAL DE 1988

Abstract

The present work has as object of study the Constitutional Silence. In the course of the research it was verified that the delimitation of the Constitutional Silence as an institute of Constitutional Hermeneutics is presupposition of the legal rationality of judicial decisions about the effectiveness of Fundamental Rights. In order for Constitutional Silence to be one of the ways of development of the Democratic State of Law, this work proposes to study its categorization by the Theory of Eloquent Silence in national doctrine and in the jurisprudence of the Federal Supreme Court (STF) in particular to answer if there is adequacy of said theory for the interpretation of the Federal Constitution of 1988. The Research was executed under the approach of legal dogmatics, therefore, with preponderant use of the deductive method. The inductive method was used in the part of the work in which it was necessary to analyze concrete cases of STF Jurisprudence. As central conclusions of the work we have the risk to the Democratic State of Law in the absence of methodological uniformity and of categories of hermeneutics in the interpretation of constitutional silence and legal insecurity caused by the lack of control of the rationality of judicial decisions by means of objective criteria. In view of the paradigm constructed from the Federal Constitution of 1988, the work concludes, therefore, by the inadequacy of the Theory of Eloquent Silence, either as systematized by national doctrine or as applied by the Federal Supreme Court.