O problema do ativismo judicial: uma análise do caso MS3326

摘要

The distinction between judicial activism and judicialization of politics, which is built on the theoretical framework of Critical Hermeneutics of the Law (by Lenio Streck). The hermeneutic phenomenology was employed as methodology. This approach can be understood as a critical review of the central legal tradition themes. In conclusion, it will be explained why the decision in this case may be considered activist, establishing an analysis of risks presented for democracy due to legal activism. In this sense, this paper is original, because it starts on a theoretical hypothesis (the difference between judicial activism and judicialization of politics) and makes it applicable to a particular case. Furthermore, this paper brings contributions to legal studies, since it explains how democracy is jeopardized when the judiciary act beyond legal limits.