Panprincipiologismo e ativismo judicial: uma análise da inflação no uso de princípios e seus reflexos no ativismo judicial dentro da realidade brasileira

Abstract

The process of formation of legal thought is extremely influenced by historical and social issues from different eras, due to the fact that Law is a human science. With the need to implement fundamental constitutional rights brought by modern constitutions, the Judiciary Branch sometimes assumed the leading role in issues typically within the Executive and Legislative branches, even innovating in the legal order, which became known as judicial activism. The passage through movements of legal thought refined the way in which the legal framework was interpreted and we witnessed the departure from positivist culture until we reached post-positivism and its representation through neoconstituconalism. Pan-principleism emerges as an exacerbated search for the use of principles as a way of justifying judicial decisions. Many of these principles emerge without a basic normative character, devoid of concise justification and support in legal provisions. The intertwining between judicial activism and pan-principleism would occur through the use not only of principles, but also of the positive legislation itself, in a way reinforced by principles, as a way of substantiating an interventionist action by the Judiciary in the activity of legislative innovation. We verified the existence of a significant relationship between the excessive use of principles and judicial activism. The stance of judicial activism poses risks because, even though its defenders fight for the affirmation of constitutionally guaranteed rights, they are not exempt from the fact that they often end up trampling on the due legislative process, creating dangerous precedents towards arbitrariness and abuse of rights. power by judges.