Judicial Activism: Judiciary Limits on the Rule of Law

• Grant number: 11/07834-9
• Support Opportunities: Scholarships in Brazil - Scientific Initiation
• Effective date (Start): July 01, 2011
• Effective date (End): December 31, 2011
• Field of knowledge: Applied Social Sciences - Law - Public Law
• Principal Investigator: Gelson Amaro de Souza
• Grantee: Karina Denari Gomes de Mattos
• Host Institution: Faculdades Integradas Antônio Eufrásio de Toledo de Presidente Prudente (FIAETPP). Associação Educacional Toledo. Presidente Prudente , SP, Brazil

Abstract

The Brazilian judiciary, both state and federal, as well as their specialized justices, shows itself in a crisis and inefficient, to settle all outstanding claims. This institution, like any other, was not immune from social changes that characterize our time, and in view the remarkable slowness, among other institutional problems, the judiciary can not seem to respond well to that society craves. This cientific work aims to demonstrate the reversal of priorities within the judiciary: its primary function of resolving disputes, namely, by the courts apply the law to particular cases has become, in recent years, fraught with concern about political issues, and thus creates for the Judiciary, a trend highly activist, executive function, which is par excellence, namely the establishment and maintenance of public policies. It will check that this projection is the result of the transfer of power of traditional political institutions to judicial institutions, a trend that has received the name of "judicial activism", led by the Brazilian Supreme Court. In this vein, it is essential and current importance in the academic discussion of the legal role of the judiciary in the Constitution and Constitutional Jurisdiction in a democratic state. Will be needed a theoretical with respect to the boundaries between law and politics, when delimit the coverage area of the decisions of the judiciary. This field, will be used for the separation between the legal system and political system, the Systems Theory of Niklas Luhmann. The choice of the theme "Judicial Activism: Judicial Boundaries Creating the Rule of Law" reflects the importance of the ensuing debate in the media and academia about the true institutional role of the judiciary in the XXI century, which, paradoxically despite its structural deficiencies, has been increasingly expanding their area of expertise proceedings.