A questão da legitimidade do ativismo judicial no contexto jurisdicional brasileiro

Abstract

The present essay was launched to the questioning of the controversy regarding the issue of the legitimacy of judicial activism under the aegis of the Brazilian jurisdictional and institutional context, inaugurated by the Federal Constitution of 1988. It aims to elucidate the problematic that enfolds the polemic strife, through its historical foresight and conceptual design, leading to an understanding of its causes and its unravel in the jurisprudence of the Superior Courts of the country. In order to do so, the legal provisions as much as doctrinal works of national and foreign authors were examined, ranging from the definition of the phenomenon as well as possible criticisms related to it, in addition to well-known jurisprudences of Brazilian judicial activism, which led to the perception of the possible contingency character that could permeate this practice. From this assumption, it was possible to verify that the jurisdictional activist action is currently based on an institutional favorable prospect to its dissemination, although it is necessary to observe the excesses arising from this stance and the possibility of setting up, in the meantime, a manifestly illegitimate phenomenon.