Separação dos poderes versus ativismo judicial: crise de legitimação dos poderes ou avanço da jurisdição constitucional?

Abstract

This study deals with separation of powers and judicial activism emphasizing the legitimacy crisis of powers and the advancement of constitutional jurisdiction. The separation of powers is a principle that has been discussed since ancient times to the present day. This principle was defended by philosophers like Aristotle, John Locke and Montesquieu thought that according to the historical moment in which they lived. The principle of separation of powers is presented as important use containment tool crucial to the affirmation and maintenance of existing democracies in the world. In contrast to this principle, the reality of modern society and the defense of constitutional rights citizens have indicated the growth of judicial activism, the possibility of judicial review of the acts of the other branches, where the Supreme Court assumes the task of ensuring the guarantee of constitutional rights. In this context, this study aims to hold a discussion on the principle of separation of powers and judicial activism and the limits of the judicial role is opposing this reality points to a legitimation crisis of powers or an advance of constitutional jurisdiction. At the end of this discussion with theoretical basis we can conclude that the action of the judiciary is growing at a time when society needs to use that power to see guaranteed fundamental constitutional rights.