Democracia e Poder Judiciário: entre o hiperativismo judicial e a excessiva autocontenção

Abstract

The present study is intended to relate the performance of jurisdiction with democratic character, seeking a definition for democracy being comprehensive albeit safe enough to express the democratic ideal both from its procedures and its substantive core in the current historical stage of Occidental civilization. This work efforts correlates democracy and constitutionalism to make a consistent link between fundamental constitutional rights and the democratic discourse, so that comprising an effective way to democracy, thus it should be able to make a much more precise outline of judicial activism and judicial self-restraint in scenarios of policies, especially in macropolicy and in the management of public policies, and in matters of morality, especially in so-called reasonable moral disagreement, in which jurisdiction should tend to be more deferential to political bodies within the Democratic Rule of Law. Finally, pursuing a criterion, it is proposed that democracy figures as an allocator element of law s legitimacy; as such, the Judiciary should scrutinize the democratic legitimacy in its concrete actions, avoiding cases of judicial hiperactivism and excessive self-restraint.