JUDICIALIZAÇÃO DA POLÍTICA: EFETIVAÇÃO DOS DIREITOS FUNDAMENTAIS CONSTITUCIONAIS OU INVASÃO POR PARTE DO PODER JUDICIÁRIO NA SEARA DO PODER LEGISLATIVO?

Abstract

This study aims to analyze whether the judicialization of politics is a means of enforcing fundamental constitutional rights or whether it is an invasion of the judiciary in the area of the legislature. Initially, the Theory of the Tripartition of Powers, endorsed by Aristotle, Lockeand Montesquieu, was adopted by most modern Constitutions. The theory was associated with the idea of Democratic Rule of Law, however, by different historical and social realities, it was possible to contemporary a mixture between the Powers, or justifying their relativization. Subsequently, a distinction is approached between judicialization of politics and judicial activism, in order to confront the dysfunctionality of the Legislative Power, which refers to the realization of its classic characteristics attributed by the Federal Constitution itself.