Ativismo judicial: um estudo de medidas de contenção em busca de uma proposta de equilíbrio

• Autor(a) principal: Machado, Alvaro Augusto Lauff
• Data de Publicação: 2020
• Tipo de documento: Tese
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://tede2.pucsp.br/handle/handle/23695
• topic: Democracia; Poder judiciário e questões políticas; Ordenamento jurídico; Democracy; Political questions and judicial power; Legal order; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO

The constitutionalization of Law, as well as the establishment of a new analytical perspective towards contemporary disputes – especially after the end of World War II – have contributed to the increased use of norms and techniques particular to hermeneutics into the interpretation and application of Law. As a result, Judiciary Power has been gaining a leading role within the competence of judges – by virtue of an approximation between law and morals – who have been using a principialist (or neoconstitutionalist) rhetoric in that, while exercising their jurisdictional function, they innovate the ordering and create a new norm, precisely to justify and corroborate the object of their respective judicial decision. This condition, conceived by the Judiciary Power itself and surfaced from their individual interpretation of constitution, implies voluntary, discretion-based and, at times, arbitrary decision-making, which is the origin of what is called judicial activism. Hence, the present research aims at identifying and/or developing curbing mechanisms towards judicial activism, from the perspective of internal control. It does so by determining methods to be observed by judges, when their decisions are to be guided by a previous, individualised comprehension of a determined constitutional principle alone, as an abstract juridical value. The theoretical milestone for warranty constitutionalism, marked by Luigi Ferrajoli and adopted in this thesis, proposes in its essence the restructuring and remodelling of positivism by means of disassociation of law and morals, establishing that the act of judging should be surrounded by formal and material requisites, such as – predominantly – the notion of processual truth. This study has identified a number of normative enunciations in the legal order which are useful in accomplishing balance and restraint against judicial activism, i.e., sections 20,21 and 22 of the Introductory Law to the Norms of Brazilian Law. This process will eventually lead to establishment of new rules to be observed during the act of judging, and that should work as an internal mechanism to restrict judicial activism. That emphasises that systematic understanding of Law, as legal order, should entail an act of judging which is supported by the adequate techniques and instruments, in turn applied in order to avoid voluntarism or arbitrariness in judicial decisions