Ativismo judicial, estado de direito e democracia: problemas e mecanismos de controle da “onipotência” judicial

Abstract

The dissertation aims to examine institutional arrangements that makes viable to control and correct episodes of judicial activism. To that end, it seeks to answer three questions: what is judicial activism; what are its negative effects on the pillars of our constitutional design; which instruments can be used to contain and fix judicial activism. The methods used were literature review and comparative approachs, focusing on Brazil and some Common Law countries. Also, through a hermeneutic approach, the tradition of the institutes are analyzed in an attempt to eliminate the semantic pollution that can damage the compreension of some concepts, in order to interpret them. Initially, the work conceptualizes judicial activism, according to the tradition of the studies on the phenomenon, as the act of the Judiciary Power that replaces political choices without sufficient juridical reasons. Afterwards, the text points out that activism has become a very serious and pervasive problem for two main reasons: the strong expansion of the Judiciary over the last two centuries; and, the advent and consolidation of legal theories that relativize the semantic limits of norms and allocate excessive discretion in the Judiciary Power to directly implement legal principles, particularly those embedded in more open ended and abstract words. In a second moment, the dissertation points out how and why judicial activism harms relevant pillars of the institutional design of contemporary constitutionalism, particularly: the legitimate space of politics; the democratic principle; the Rule of Law; and, the Separation of Powers. Finally, the research identifies two important tools to control and confront judicial activism: the development of theories of interpretation and judicial decision that reduce the margin of voluntarism of judges and courts, and the mechanisms that allow institutions external to the Judiciary to react against activist decisions. The work concentrates on this second group of tools, particularly on the instruments of institutional dialogues, called constitutional dialogues as well, which enable the reaction of political powers in face of activist judiciary rules. The dissertation, then, seeks to demonstrate that Parliament has a structure and operating modes that enable it to act as a forum of principles which takes rights seriously, and can participate in a dialogue with the judiciary on constitutional rights and principles. Finally, the concrete institutes that political powers can use to respond to activist judicial decisions are listed.