O papel do juiz no estado democrático de direito: perspectivas epistemológicas da função judicial no século XXI

Abstract

The continuous changes in society, especially with the advent of democratic rule of law, provided a profound change in the role of judges and courts. The new constitutional paradigm shifted voltage pole of the executive and legislative powers to the judiciary, making the judges start to have a responsibility to materially comply with the constitutional pact. From this perspective comes the judge as an actor determining the effective creation of the right solution and the legitimate social claims, conducting democracy when solved the case presented to the courts. However, such an increase in the judiciary action was approved in Brazilian culture as the affirmation of a necessary judicial role. The politicization of justice due to the expansion of constitutional jurisdiction, eventually led the judges to stop performing legal judgments necessarily grounded on arguments and parameters of validity of legal and constitutional nature, leading to decide based on personal criteria. The company then began to face is no longer with the judicialization of social relations, but with distinct phenomenon termed as judicial activism. The central question that arises, then, is to know what the basis that democratically legitimated the judiciary, to the extent that this power does not come from the universal suffrage as in other spheres of power. That is, it is to assert the about the functional role of the judiciary, centered on the judge's figure, precisely because it is a body devoid of political control, even those of an institutional nature, and that needs to collide with the interests of sovereignty. The study is developed as a way to provide an analysis of the interpretation of the standard process in that the decision of the court decision necessarily goes through this process. Therefore points to overcome interpretative crisis by philosophical hermeneutics and also receives the role of the principles for protecting the autonomy of law. Seeking contextualize contemporary debate about the problem of the Brazilian judicial activism in an attempt to undertake a study to enable analysis of likely responses to the problem of judicial prominence and urgency of a legal theory that is adequate to provide correct answers in the current democratic state Law as a way to cut theme, will address the elements that propel the arbitrary judicial activism: the vagueness of the concept of principle, the problem of structural distinction between rule and principle and the consequent profusion of principles. These elements, in addition to providing an activist role of the magistrate, serve as a backdrop for the analysis of the problem proposed the study in this thesis: the role of the judge in a democratic state, can the judge take a more activist stance without endangers the democratic rule of law? That is, the research aims to address the prospects of the judiciary of the judicial function in the twenty-first century.