Ativismo judicial e segurança jurídica: limites e perspectivas

Abstract

Jurisdictional performance in strengthened constitutional states has a growing impact on Western democracies and a strong presence in society, there has been a considerable increase in the role of the judiciary, particularly in social, affirmative and legal demands in its various fields. The mechanism of this action was the Federal Constitution of 1988 In fact, this active system of constitutional control has driven the phenomenon of judicialization in recent democratic history, so it was observed a protruding performance of the members of the judiciary in the face of the anxieties that the social environment entrusted to it. In addition, there was a crisis movement of legitimacy, perhaps political, within democratic institutions, and because of the recent and incomplete maturation of the institutions that make up the national democratic-political system, this movement of protagonism of the judiciary and its insertion into the power play, parallel to the executive and the legislative, this active insertion has caused an imbalance, real or imaginary, in the current legal system, causing still some insecurity in it. Prominent action on the part of the judiciary occurred in the context of judicial activism, which is understood as a central phenomenon under discussion in the present work. The problematization dealt with in the present work are the limits of the discretion of the judges in the jurisdictional action. I have as a general objective to address the consequences of judicial activism for the legal security of the order and for the judicial rendering. This research justifying the need to understand how and what forms, causes and consequences that flow from the interpretative process of the norm. The methodology used in the present research was through the deductive method, with the technical bibliographic procedure, allowing the donation of premises in order to reach the expected conclusions. Judicial activism has its origins in judicial review developed in the US legal system, imported and implanted in the Brazilian constitutional system, through the use of the system of checks and balances where it balances and limits the performance of the powers of the Republic among themselves. Demonstrating the causes, effects, consequences, limits and perspectives of judicial activism, this work is taken in general and with juridical insertion, about the methods and forms that the phenomenon of judicial activism takes in the patriot courts and their reflexive dictates in the social environment.