A ineficácia da função típica do Poder Legislativo e o Ativismo Judicial.

Abstract

With the advent of constitucionalism, wich gave the Federal Constitution the superior norma carater of the legal planning and with the guard Major Text responsability given to the Courts, and in front of the Legislature inaction as its function to draft laws, the adjudicative power, in particular the Supreme Court, rebels as prominent organ in the brazilian scene, therefore, to examine the case, absent regulation, begins to interpretate the constitutional norm extensively, seeking, many times, to give broad effectiveness to fundamental rights and provide answers to society, thus becoming , to innovate in the legal system. In this way, it begins to take a more active role than usual , since going to legislate and set public policy as if their were these assignments. In this path , policy Legalization and proactive attitudes of the judiciary , highlights the importance of this research, at the relevance of the principle of separation of powers and the democratic regime that find themselves threatened when the decisions of the judiciary innovate or regulate the legal system for other purposes without the giving effect to the fundamental rights violated. So, with the aim of analyzing the effects of the proactive stance of adjudicative power, it is adopted as a method of approach deductive , as the procedure methods we use the comparative and documentary research. And as research technique, the bibliography. In order to demonstrate that the Judicial Activism has been the solution to the crisis of representation that has gripped the political powers, giving effect to the sensitive rights and satisfying the needs of society, but one should be cautious about this proactive stance , as the excess of activism mitigates the separation of powers and offends democracy .