O ativismo judicial como fenômeno negativo ao estado democrático de direito brasileiro

Abstract

This work aims to analyze the phenomenon of judicial activism and how it is harmful to the Brazilian Democratic State of Law. Its hypothesis is the thesis that judicial activism is a political behavior that flows into the Law and strikes against the requirements and mechanisms of a democracy. The explanatory method was used for the research, through the exposition of the thoughts of Brazilian and foreign authors, through books and scientific articles. Furthermore, law texts, jurisprudence and historical documents, such as letters and speeches, were examined at the national and international levels, in order to achieve the reasoning exposed in this work about the way in which judicial activism impacts the Brazilian Democratic Rule of Law State. The specifically pursued objectives are are: understanding the pillars of a Democratic Rule of Law State; how the formation of this new State provides a structural design that allows greater protagonism of the Judiciary in the political debate; define the Judicialization of Politics and judicial activism and analyze whether they are the result of a structural dimension that contemporary democracies experience or of the will of the judge/court; and, finally, to verify if the judicial activism is in line with the elements of a Democratic Rule of Law State. All this is built to prove the idea that judicial activism is a voluntarist behavior of the magistrate who considers it appropriate to use his particular conceptions about what justice and morality is to promote change/maintenance in the sociopolitical status quo, making use of the Law as an instrument of their will and striking agains the democratic principles.