REVISITING THE JUDICIAL CONTROL OF PUBLIC POLICIES FROM THE ROOTS OF THE DEMOCRATIC OBJECTION TO THE PERFORMANCE OF THE JUDICIAL POWER

Abstract

This article analyzes the judicial control of public policies by the Judiciary. This analysis will be made from the analysis of the roots of the dichotomy between constitutionalism and democracy. This historic effort has a double justification. On the one hand, understanding the process of sedimentation of the idea that the Judicial Power can stop acts of other powers can greatly help in understanding the issue of judicialization of public policies. On the other hand, understanding that the current state of affairs is not an immutable fact, but rather the result of a historical construction, is fundamental for facing this type of issue. To do so, the circumstances surrounding Bonham's Case and Marbury v. Madison, probably the most relevant decisions on the subject. Finally, some aspects of the institutional design of contemporary Brazil will be presented. It will be concluded that the possibility of interference by the Judiciary in what would traditionally be the field of action of other powers is a historical construction and, currently, is linked to the notion of the Democratic State of Law. This conclusion was based on a qualitative and theoretical research, through a review of the bibliography concerning the concepts studied here.