Ativismo Judicial, um fenômeno gradual — critérios para sua aferição a partir da análise do discurso

Abstract

Judicial activism is the undue interference of the Judicial Power in the competence of other public powers. In order to determine whether and to what degree judicial activism exists in the Court of Justice of Minas Gerais, as one of the representative courts of the Brazilian Judiciary, a bibliographical and empirical case law research of exploratory nature was carried out, verifying the adequacy of the judicial reasoning to the legal discourse. The analysis use as parameters aspects of the discourse theory, developed by Jürgen Habermas, and the theory of legal argumentation, elaborated by Robert Alexy. As a criteria, first, the classification of the arguments that compose the general practical, legal, and empirical discourses was elaborated. Next, the presence of non-institutional arguments (of the practical and empirical discourse) was verified in the constitutive elements of judicial decisions, namely, ratio decidendi, rationales and obiter dicta. The application of these criteria enabled the determination of the degree of judicial activism effectively identified.