O ativismo judicial no Brasil: análise da atividade interpretativa do supremo tribunal federal.

Abstract

The present research aims to critically analyze the interpretative activity of the Supreme Court, focusing on the judicial activism and its consequences in the Brazilian legal system. The hypertrophy of the Judiciary and, therefore, the judicialization and judicial activism, represent serious risk to the harmonic separation of the state functions, considering that the prerogatives belonging to other Powers are often usurped. In this context, it is constant the tension between Democracy and Constitutionalism. In other words, on the one hand the majority principle as the highest expression of the people’s will, on the other the need to protect fundamental rights and guarantees enshrined in the Constitution, often to the detriment of the majority, through the decisions of a countermajoritarian Power, which is the Judiciary. In the dissertation, it is used as a method of approach the hypotheticaldeductive. As a method of procedure the historical, whereby are demonstrated the origin and evolution of the presented institutes; the comparative, focused on the understanding of the similarities between the Brazilian and foreigner courts, especially North-Americans; and the monographic, starting from the study of cases in search of generalities about judicial activism in Brazil. Furthermore, it is used indirect documentation as a research technique. For this purpose, the research is structured as follows: in the first chapter, the neoconstitutionalism is discussed as a starting point for the development of the presented theme, this is because its characteristics are directly related to both methodological and ideological changes observed in the national legal system. In the second part of the research, it’s analyzed the most relevant aspects of the neoconstitutionalism, which are: the constitutionalization of the law; the judicialization of politics, social relations and judicial activism, demonstrating the relation of cause and effect between them and how they contribute to the development of judicial supremacy. And in the last part, it is analysed Supreme Courts’s emblematic decisions concerning to judicial activism, in order to peer the incidence of this behavior in Court. In the study's development, it was found that the Supreme Court, adopting an affirmative attitude, doesn’t always invade the area constitutionally reserved for other Powers, even if they are accused of interference in the judicial competence in many situations, especially when its legislative atypical function is managed. This makes a clear distinction between legitimate interpretation under the Constitution and the judicial activism.