Abstract

STRAPAZZON, Carlos Luiz  and  GOLDSCHMIDT, Rodrigo. Constitutional theory and political activism: theoric and practical problems related to social fundamental rights. Rev. Fac. Derecho Cienc. Polit. - Univ. Pontif. Bolivar. [online]. 2013, vol.43, n.119, pp.567-624. ISSN 0120-3886.

The main purpose of this text is to provide a critical discussion about the use, in legal theory, of the compound term "judicial activism". The institutional environment of analysis of this work is the Brazilian constitutional democracy , its complete system of fundamental rights and mixed model of constitutionality control. The principal hypothesis is that the contemporary theory of democracy and the fundamental rights, in institutional settings such as Brazil, offers less obscure solutions to explain the new and controversial forms of judicial performance used to protect the fundamental rights to positive actions. For that purpose, the article analyzes the uses of the term "judicial activism" at all familiar contexts, and based on Brazilian and international jurisprudence experience offers critics to its current usage. The document also points out, as a less obscure alternative, the way the current judicial functions play a decisive role in structuring the receptive dimension of democracy. The main thesis is that the judicial empowerment, as well as the new protective legal competences of fundamental rights to positives rights are few, if any, related to judicial activism: and a lot, or nearly fully, related with the legitimate judicial functions of control of subjective rights generated by the receptive dimension of the constitutional democracies like the Brazilian.

Keywords : Democratic responsiveness; fundamental rights to positive duties; judicial activism.

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