JUDICIAL ACTIVITY FROM THE PERSPECTIVE OF THE PRINCIPLE OF SEPARATION OF POWERS

Abstract

The purpose of this article is to analyze the phenomenon of judicial activism and possible incompatibility of its practice in relation to the foundations of the Democratic Rule of Law. Initially, it turns out that activism has its origin in a wide phenomenon of judicialization, through which the use of the Judiciary to deal with the most varied aspects of life is observed. Judicialization has several facets, among which the politicization of the judiciary, the judicialization of politics and judicial activism itself stand out. In turn, judicial activism is a phenomenon whereby the Judiciary is increasingly playing a leading role within the political scene, especially because it starts to perform functions outside its competence attributed by the Democratic State under the Law, evoking activities that are essentially incumbent upon to the Legislative Branch. This occurs to the extent that, when judging, the Judiciary resolves conflicts of interest through the application of solutions not provided for by law, creating legal norms to solve specific cases. It is emphasized that, despite the genesis of the phenomenon in question being in the inertia of the other powers of the State (mainly of the Legislative Power), it is concluded that this salience of the Judiciary affronts the Principle of Separation of Powers, considering that, through the even, the judiciary organ extrapolates the function of applying and interpreting the Law, because, when conceiving legal solutions not provided for by law, it ends up creating law, a function that typically belongs to the Legislative Power.