Judicial activism: what it is, what it is not and how to deal with it Márcio Gonçalves Felipe, Carolina Aparecida Galvanese de Sousa, Verônica Scriptore Freire e Almeida

Abstract

As a historical, political and legal manifestation, constitutionalism gains special evidence in the transition from the Modern Age to the Contemporary Age. Due to its achievements, the power of the absolutist monarchy is gradually mitigated, with the first features of a constitutional democracy coming to light. Amidst the structuring of the new model, the principle of separation of powers occupies a prominent space, given its potential commitment to the preservation of individual freedom, the installation of a regime of reciprocal inspection and accountability, and collaboration between state representatives. However, especially from the post-war period that characterized the 20th century, the Judiciary, standing out from the other powers, assumes a leading role, sometimes invading areas alien to the constitutional prescription. The posture, often immersed in an air of normality, is repeatedly denounced as activist and especially offensive to the consecrated separation of functions between state bodies. Traversing, albeit superficially, the most recent path of the constitutionalist movement, laying secure foundations for what can be understood as judicial activism and presenting proposals aimed at its institutional dismantling, frankly offensive to the Democratic State of Law, is what is proposed in this article.