The role of the precedents to the control of judicial activism in the post-positivist context

Abstract

The Brazilian Constitution of 1988, resulting from a post-positivist tradition, recognizes legality and enforceability to a wide array of principles, large and abstract by it’s nature. Moreover, the Charter expanded the list of fundamental social rights whose realization depends on public policies, traditionally defined and implemented by the executive and legislative branches. In this scenario, judiciary has been increasingly summoned to manifest itself on issues that were traditionally debated in the political sphere, resulting in the judicialization of politics. Because adjudication is more and more based on constitutional principles and often focuses on public policies, it interferes in the performance of other branches of government. Furthermore, they imply an increasingly broad interpretive activity which favors the judicial activism. The text analyzes three different points of view about the activism: the first considers that activism undermines the democratic rule of law because it concentrates power in the judiciary; the second argues that activism contributes to legal uncertainty, which has perverse economic effects; the last one analyzes the freedom of judgement under the activism context and concludes that judiciary has the duty of adjudicating by making predictable and uniform decisions in order to guarantee a fair judgment. In conclusion, the paper suggests that it’s important the imposition of limits to control the creative activity of the magistrate, with the adoption of a system of binding judicial precedents.