Ativismo judicial e separação de poderes: Uma Análise do Recurso Extraordinário nº 898.060/SC

Abstract

The Modern State has undergone several changes over the past three centuries, along with these transformations came the principle of the separation of powers. Despite the balance of separation of powers, it also underwent some changes, among which we can mention the judiciary, which gained a new guise, going to the center of the public debate. Caused by the Democratic State, which emerged during the 20th century, with the end of world wars and the fall of authoritarian regimes. As a result, a new understanding emerged in the understanding of the Constitution, in which the State must meet the wishes of the people, and not the people meet the wishes of the State. The Charters that participate in the neoconstitutionalist movement, aimed at the constitutionalization of Law, and adopted a wide range of principles. It turns out, the Judiciary was strengthened in this neoconstitutional movement. The problem that will be studied, if in case of failures of the other powers, the Judiciary acting in order to grant an activist response to society, would be an interference in the separation of powers. The objective of this research is to demonstrate the consequences of this new form of action by the judiciary, known as judicial activism, to study the criticisms and tensions arising from these discussions. This work is divided into three chapters, the first two are addressing the origin of the State and the separation of powers and judicial activism, and the last, the multiparenting and the analysis of Extraordinary Appeal 898.060. Bibliographic research was used as a technique, mainly applying the contributions of several authors to the production of the theoretical framework of the project. For case analysis, documentary research was used, handling Extraordinary Appeal 898.060 / SC. In the conclusion reached, the Judiciary acted within the limits of the separation of powers.