A (i)legitimidade do ativismo judicial praticado pelo STF: uma reflexão à luz dos ditames de um Estado Democrático de Direito

Abstract

Nowadays, the role evidenced by the judiciary is notorious, especially by the Supreme Court on the legal/social/political national scenario. This trend is due to the creation of a generalized imaginary in the sense that the effectiveness of the rights listed in the Constitution are made dependent on judicial answers, what causes the judicialization of politics. However, the biggest problem lies not in the role itself, given the political issues become judicialized, but in how the judicialized or not issues are decided. From this perspective, the scenario of judicial activism made appear the character of the "creative" judge that failing to find the desired response in the legislative framework, he decides according to his own conscience, even in dissonance with the integrity of the law. Therefore, becomes crucial to elucidate the legitimacy of the practice of judicial activism, which has discretionary contours which lead to arbitrariness. Everything being analyzed from a reflection according to the dictates of a democratic state. To this end, preliminary, possible semantic and factual connections between judicial activism and legalization of politics are removed. Further, the hermeneutical exercise uncompromising with the integrity of Law are explored, where solipsistic interpreters "cheat" the interpretive task and invoke several principles on the judicial speeches, without normativity. In another context, we analyze concrete cases tried by the Supreme Court. Finally, the need of creating a "decision theory" is instigated, with the purpose of breaking with the solipsistic discourse, in order to maintain the consistency and integrity of law, which are fundamental in a state that calls itself democratic.