Ativismo judicial: uma análise do fenômeno pela ótica da filosofia liberal no Brasil

Abstract

The present monography has as it main goal analyse the Judicial Activism under the optic of the liberal philosophy, therefore, firstly it will be done a sintesis of the liberal thinking, resuming it in 8 dogmas, posteriorly, with the intention of showing not only what constitutes the liberal thinking but also how it philosophy was formed, in doing so, it will be done a historical contextualization about the emergence of liberalism and in sequence, because the focus of this work is Judicial Activism in Brazil, the emergence and evolution of liberalism on Brazil. In second plan, it will be presented a series of concepts and phenomena necessaries to the comprehension of the main object of this work: Fundamental Rights (delimitation of its meaning, as well as its relation with liberalism), brazilian 1998 Constitution (characteristics and process of formulation) and Hermeneutics (Origin, problems, how it works). In a third moment, get in Judicial Activism, doing a contextualization encompassing the evolution of jurisdiction, going through the conflicts between: Natural Law and Statute Law, Common Law and Statute Law and the Constitucional Jurisdiction, for at last, approach the Judicial Activism, establishing it differentiation with the judicialization, presenting it antagonist: the Judicial Restraint, for finally define what is activism, when it is negative and when it is positive. For this purpose, it was used the hypothetical-deductive method (1. “The judicial activism is a necessary tool to guarantee fundamental rights”, and, 2. “Judicial activism has it origins in liberalism”), as well as bibliographic research. Thus, starting from the problem that all judicial activism is seen as negative, and, the sadly negative connotation that liberalism has acquired, so, this monography has achieved as conclusion that the judicial activism is when a judge decides a case not accordingly with the law, but, what is relevant to define if this activism is negative or positive is the motivations the judge had to rule like that, so, the judicial activism is negative when the judge decides against the law for letting its ruling be contaminated with its personal and political preferences, in this moment its decision is corrupt, and it should be abhorred, independently of your philosophical and political spectrum, in the other way, when the judge rules against the law in order of protecting fundamentals rights and guarantees (the rights achieved on the liberal revolutions, the liberal rights), it’s positive, and it should be considered an appliance to protect fundamental rights and guarantees, as also, it usage should be commendable (but it should be restricted to this cases), even though, its necessary to propose solutions to the non intentional negative effects that those decision carry, the effects arising from fiscal irresponsibility and the judicial insecurity.