Omissões legislativas inconstitucionais: reflexões acerca do seu correto delineamento teórico e da legitimidade democrática do seu controle

Abstract

This dissertation aims, starting from mainly theoretical thoughts, to provide capable evidences in order to flourish logical examinations regarding to the theoretical assumptions related to the currents studies of unconstitutionality by omission. The work search to show clearly the legal and historical aspects in which the concept was developed to therefore formulate a new theoretical approach of the current circumstances which characterize the unconstitutionality by omission occurrence. The concept requires a more specific modernization of the Law system, established in a dynamic and fluid reality. It proposes a ponderative reasoning, less founded on the strict application of the law, regarding to the omission knowledge and to enlarge the concept making possible to recognize the unconstitutionality by omission occurrence also related to the enforceable/feasible standards. This broader concept, although, must be founded in material values, remarkably to the fundamental rights essence, and the main goal intends to the creation process of new rights by Legislative Power, acting simultaneously as an important instrument in order to put into effect the fundamental rights and the development of democratic process.