Ativismo judicial, sob a perspectiva do neoconstitucionalismo: entre os limites da racionalidade jurídica e da decisão política

Abstract

During 2021 to date. The study deals with judicial activism, in perspective of Neoconstitutionalism, as a driver of guarantees and implementation of fundamental rights based on the normativity attributed to the principles constitutional. Through a new contemporary legal discourse, the theory of constitutional principles and their rational applicability as a factor of legitimation and justification of judicial decisions. We treat Neoconstitutionalism as a theory aimed at achieving the Democratic Rule of Law, through the enforcement of fundamental rights. Through the study it was possible to realize that the Neoconstitutionalism gave greater scope to judicial discretion and judges begin to have a substantialist position in judicial decisions. The secular confrontation between law and morality no longer requires separation between the two and begins to give rise to a position of rapprochement. Also presented is a differentiation between judicial activism and judicialization of politics. We demonstrate also that the mechanical application of the standard gradually became insufficient to meet social demands, creating movements that break with the classical positivism seeking a more philosophical ideal that sought to bring right and late.