OS FENÔMENOS DO CONSTITUCIONALISMO, AS FACES, JUDICIALIZAÇÃO OU ATIVISMO JUDICIAL

Abstract

he Supreme Constitutional Court, within the limits of its attributions, exercises a creative role in law. This role encompasses counter-majoritarian, representative, and vanguard functions, which cause surprise in the traditional sphere of power, fueling the idea of illegitimacy to oppose decisions from traditional spheres. However, a grounded analysis reveals that the actions of the Ministers of the Supreme Federal Court (STF), in interpreting and creating law, are not an activist endeavor but rather a way to reduce the indeterminacy of law, given the confusion of abstract predictions or the absence thereof, as these fail to keep pace with the dynamics of a society in constant development, forming an extremely complex group in rights and duties. The purpose of this action is to guarantee the protection of fundamental rights, as well as to ensure the rules of the democratic game. Therefore, activism, often confused with judicialization, is distinct from it, as the former is a proactive attitude without constitutional bases or any other normative act. Judicialization is a fact of new law, creating the figure of legislator judges competent to provide law within their attributions. The problem this study sought to answer is whether judicialization is the legitimate path to avoid the problem of the absence of normative instruction for the solution of specific cases. The methodology used was bibliographic research. Among the conclusions, it was observed that the duty of interpreting the constitution and guaranteeing constitutional norms is exercised with mastery by the ministers of the STF, creating law in light of the needs and the lack of legal provision.