A declaração parcial de inconstitucionalidade sem redução de texto como técnica decisória autônoma da justiça constitucional brasileira

Abstract

The purpose of this study is to examine the partial declaration of unconstitutionality without curtailment of text, from its concept, origin and basis to its practical application in the Brazilian system of control of legislation, with the aim of demonstrating its independence as a decision making technique for the control of constitutionality. In effect, the application of partial nullity without curtailment of text by the Federal Supreme Court has invariably occurred through the simultaneous use of interpretation in accordance with the Constitution, as if such techniques were equal or inseparable, giving rise to criticism and divergence of doctrine. Nevertheless, notwithstanding the proximity of the practical results obtained through their application, they are, in fact, independent and distinct techniques, the incidence of which is presumed to be based on different hypotheses and which, in addition, have disparate effects with regard to the result of the claim within the sphere of absolute control. Following an analysis of the general theory of unconstitutionality and of the kinds of decisions in the sphere of control, we move on to the examination itself of the partial declaration of unconstitutionality without curtailment of text, based on its comparison with the different techniques and the examination of Federal Supreme Court jurisprudence on the matter, so as to confirm its independence as a decision making technique of Brazilian Constitutional Justice