A interferência do poder judiciário no âmbito das políticas públicas sob o prisma dos direitos fundamentais

Abstract

Throughout the evolution of constitutionalism, we perceive progress regarding the protection of fundamental rights granted to the members of society. Initially, were protected individual rights or first generation, geared to the value of freedom, whose aim was to protect the individual against the power of the state wide. The increasing dynamics of the social environment resulted in the need for the Government to perform certain positive benefits, with the aim of providing tools to the members of the community to exercise their freedoms. Born so social rights or second generation, which demanded an active Administration in order to provide well-being for the people. Currently, such active behavior of the state is materialized through public policies elaborated by the Legislature and enforced by the Executive. It turns out that, according to most of the doctrine, such policies are exclusives administrator, and could not be analyzed and monitored by the judiciary on the grounds of violating the state discretion and separation of state powers. Moreover, the principle of reserve for contingencies is also raised as grounds to exclude judicial review. Thus, the importance of this study lies in demonstrating the viability of the interference of the judiciary in the context of public policy, by virtue of such intervention be undertaken in order to ensure the fundamental rights provided for in the Federal Constitution, pillar of the entire legal system. Thus, we will show the reasons that legitimate judicial intervention in public policy, overcoming allegations of wrongdoing state discretion, the booking of and possible violation of the separation of powers and always seeking the enforcement of fundamental rights.