O ativismo social como forma de retrocesso social

Abstract

This Dissertation is part of the Constitutional Jurisdiction and Democracy Research Line of the Master's Course, which focuses on New Paradigms of Law. The research shows that the current legal interpretation is still not adequate to the Democratic Rule of Law enshrined in the Federal Constitution of 1988. With the promulgation of the Republican Constitution, the Judiciary Power expands its activities, including invading the space of other State Powers and leading to the emergence of the so-called judicial protagonism. Firstly, the best form of constitutional interpretation is highlighted, that is, the interpretation in accordance with the Constitution. Next, we resort to the characterization the phenomenon of judicial activism in Brazil and the relationship between this and the judicialization of politics. Furthermore, these phenomena are related to the Principle of Separation of Powers. Once the Judiciary Power is activated in the Democratic Rule of Law, all legal decisions must be guided by constitutional values. Vagueness in the constitutional text is not a justification for legal decisionism. Any legal decision that goes beyond the limits of the legal system is considered an activist decision. In the meantime, we delved into the systemic theory of law to analyze the recurring judicial activism in Brazil. Firstly, Niklas Luhmann's social system is studied, bringing to the study the main concepts and understandings of the systemic theory of law to, after, contextualize activism judicial system in the Brazilian legal "system". The current legal system does not have rigid operational limits where it is clear that judicial activism is part of the system's operation. In the search to solve new constitutional problems, the theory of legal decision is pointed out as a way of limiting judicial activism. It concludes with the characterization of the Principle of Social Retrocess in the Brazilian legal system and ends with a systemic reading of judicial activism and the Principle of Social Retrocess, considering that, above all, an activist decision cannot cause any setback to society Brazilian. For necessary findings, we used the systemic method that made it possible to verify judicial activism as a part that does not belong to the Brazilian legal system. There are limits to the Judiciary's action where decisions made by non-legal criteria and, therefore, outside the Brazilian legal system, cannot cause any setback to the fundamental rights already achieved and guaranteed to Brazilians.