O ATIVISMO JUDICIAL COMO EFETIVO GARANTIDOR DOS DIREITOS FUNDAMENTAIS

Abstract

The present study seeks to identify the effectiveness of judicial activism in Brazilian jurisdictional practice, as well as the ways in which it acts in the realization of the fundamental rights fulfilled in the Constitution of the Federative Republic of Brazil of 1988. In many concrete cases, society resorts to the Judiciary as way of seeing the omission of the other Powers supplied, especially the Legislative Power, seeking the realization of the so-called fundamental rights. Thus, we seek to demonstrate, throughout this article, how this activist jurisdictional performance has positive results in guaranteeing constitutional rights, even though it still translates for some jurists the notion of an exorbitant competence behavior assumed by the Judiciary, carrying a negative affection. To this end, exemplifying judicial activism in Brazil, there is the recognition of the homoaffective stable union and the criminalization of homotransphobia, where in both cases, it remained evident that judicial activism aimed to achieve social equality and guarantee the minimum existential and dignity of the human person, including charging the Legislative Branch and correcting its omissions and delays. The research methodology used was theoretical research, based on bibliographic review, focusing on doctrinal and jurisprudential analysis.