Adoção explícita do ativismo judicial em face da lei n° 13.300/2016 como resposta à crise das instituições democráticas

Abstract

The Writ of Injunction came with the advent of the Federal Constitution of 1988, however, after twenty and eight years of the promulgation of the Constitution, only on June 23, 2016 was regulated their prosecution and trial by editing the recent Law No. 13,300 / 2016. The instrument is the means able to meet the total or partial legislative omissions concerning constitutional rights and freedoms and prerogatives inherent to nationality, sovereignty and citizenship whenever the exercise of these rights is prohibited by lack of a specific regulatory standard. In this study, the constitutional guarantee will be addressed in several ways, from the historical origin of the institute, with reference to the terms of the Constitution and democratic state, through detailed knowledge of the Writ of Injunction, the doctrinal differences, the position of the Supreme Court , and especially the evolution brought by Law No. 13,300 / 2016 has influenced considerably in the phenomenon called judicial activism. Therefore, it is an analysis of Judicial Activism in Brazil, highlighting its key factors and inquiring about their legitimacy and effectiveness, as well as its implications and favorable or unfavorable consequences that reflect more intensely in the life of modern society. The study developed here we used the deductive method, taking as a basis the literature, such as books and magazine articles published on the subject, as well as extensive case law search. In this sense, the objective is to point the reflection of the legislative reaction on fundamental rights with the crisis of democratic institutions and the ineffectiveness of constitutional norms that lead to a proactive attitude of the judiciary in order to verify and better meet the needs of popular sovereignty.