A BALANCE OF JUDICIAL REVIEW SYSTEMS AS INSTRUMENT TO GUARANTEE THE MATERIAL CONSTITUTION AND FORMAL CONSTITUTION

Abstract

The article deals with the trajectory of constitutional control systems, critically verifying the effectiveness of these systems as a guarantee, instrument of realization and harmonization of the formal constitution with the constitutional material order. The article makes use of the problem posed by the constitutional theory of the congruence or discrepancy between the material constitution and the formal constitution, verifying the efficiency of the control systems for the realization of the practical agreement between these two orders. The analysis took as a budget the possible differences between the formal and the material in the constitution, and as such divergences can be seen as problems of guarantee and realization of constitutional law. The approach is carried out in 3 items: first, the exploration of the theoretical references on the guarantees of the constitution, inserting the problem of the differences between material and formal guarantees, with the subsequent classification of the various uses of the terms formal constitution and constitution matter; Second, there is an exploration of the history of constitutions showing the dilemmas between formal order and material order, including the theoretical contextualization of this dilemma; Third, as a closing, the approach of how constitutional control systems operate for the realization and congruence between formal and material constitutional orders. The sources of research are bibliographical materials of constitutional theory, constitutional legislated documentary sources and material of academic publications. The analysis made is qualitative, of the effectiveness or not, of the systems of control of constitutionality for the realization and the congruence between the material order and the formal order of the constitutions. A comparative approach was also used, but with a lower incidence.