JUDICIAL ACTIVISM AS A MECHANISM FOR IMPLEMENTING FUNDAMENTAL RIGHTS: BETWEEN CONSTITUTIONAL EFFECTIVENESS AND VIOLATION OF THE SEPARATION OF POWERS

Abstract

This article aims to critically analyze the phenomenon of judicial activism in Brazil, with an emphasis on its relationship with the separation of powers and the enforcement of fundamental rights in a democratic state governed by the rule of law. To this end, a qualitative approach was adopted, using bibliographical and documentary research focused on classical and contemporary authors, as well as paradigmatic decisions of the Supreme Federal Court. The analysis was based on the theoretical distinction between the judicialization of politics and judicial activism, highlighting the hermeneutic and institutional criteria that delimit the legitimate role of the Judiciary. The results indicate that, although judicial activism is often criticized for allegedly exceeding the limits of jurisdiction, it can, in certain contexts, represent a necessary response to the omissions of other branches of government, contributing to the realization of constitutionally guaranteed rights. However, significant risks were also identified, such as legal uncertainty and the Judiciary's overlap with the other branches of government, especially when there is poor foundation or a lack of institutional dialogue. The conclusion is that judicial activism, when guided by solid normative arguments and exercised prudently, can be compatible with democratic values, provided there is a balance between effectiveness and legitimacy. This research contributes to critical reflection on the limits and possibilities of judicial power in contemporary Brazil, suggesting the strengthening of interinstitutional dialogue and the need for further empirical studies on judicial action in specific contexts.