Considerações sobre a (in)adequação do ativismo judicial no estado democrático de direito brasileiro

Abstract

This study examines judicial activism in the Democratic Rule of Law, analyzing its compatibility with the separation of powers and democratic principles. The research begins by conceptualizing the constitutional system and the collision of principles, exploring proportionality as a criterion for the reasoning behind judicial decisions. The distinction between garantism and activism is addressed to understand the extent to which judicial action can safeguard fundamental rights without exceeding its competencies. The investigation considers legal hermeneutics and the possibility of law creation by judges, highlighting the impact of case law on the evolution of the legal system. Manifestations of judicial activism in different legal systems are also analyzed, with an emphasis on the Brazilian experience and the role of the Supreme Federal Court in significant rulings. The influence of the 2015 Code of Civil Procedure and the expansion of the judge’s investigative powers are discussed as possible expressions of this practice. Although judicial action can contribute to the realization of fundamental rights, this research emphasizes the need for limits to prevent distortions in the democratic balance. In addition to assessing the consequences of judicial activism, the analysis proposes criteria to guide this practice and suggests legislative reforms aimed at improving the legal system. Thus, this study contributes to the debate on the challenges and limits of the judiciary's role, highlighting its function in upholding democratic principles