Análise do fenômeno do ativismo judicial enquanto judicialização da política e seus efeitos no ordenamento jurídico brasileiro

Abstract

This paper intends to analyze the phenomenon of judicial activism in Brazilian courts, especially the Supreme Court, seeking to establish differences between the legitimate judicial function of filling gaps present in the legal system and actual judicial activism, which represents a judicialization of politics currently. It is possible to see, today, an overcrowding of judicial instances not only for solving problems arising from existing laws, but also for the creation of new norms according to society's trends. To achieve its objective, this scientific article has as its theoretical framework the Montesquieu system of checks and balances and will analyze the expansion of the reach of the judiciary, describe a brief history of judicial activism in the world and, especially, in Brazil, the differentiation between the types of legal gaps and the analysis of two flagrant cases of jurisprudential regulation by the Federal Supreme Court. At the end, it is intended to verify some consequences that this phenomenon causes in the national ordering and a possible solution to alleviate its practice.