Neoconstitucionalismo e ativismo judicial: democracia e constitucionalismo em oposição ou tensão produtiva?

Abstract

To talk about neoconstitutionalism means realizing that the separation of powers is currently undergoing a new readjustment. The law now acquires a strong axiological load by constitutional principles, especially in the form of fundamental rights. Neoconstitutionalism holds a constitutionality necessarily tied to moral. The effect of the irradiation on the principles across the legal system eliminates the space for discretion and extends the applicability of the legal system. The theory of principles necessarily refers to a theory of practical legal argument. Thus, it is also possible to observe a shift in the role, each time in history played by one of the branches, to the judiciary, which does not mean the judge would have arbitrary power. Rather this, his actions must be guided by ethical and political rules that inform the Constitutional and Democratic State of Law. The principles stimulate new forms of legal and practical rationality in order to realize fundamental rights, which is the task and duty of the judiciary brach as guardian of the Constitution and hence of fundamental rights.