Judicial Activism versus the Principle of Separation of Powers

Abstract

This article seeks to demonstrate the importance of judicial activism and its relationship with the principle of separation of powers. It highlights the role played by judicial activism in the realization of law within the Brazilian Democratic Rule of Law, particularly in the interaction among branches of government, the effectiveness of their balance, and the reinforcement of democratic values. Considering the phenomenon of the judicialization of politics and social relations in Brazil—arising from various causes—issues of political, social, or moral relevance have increasingly been brought before the judiciary. Judicialization is a structural feature of the Brazilian institutional design and has contributed to the emergence of judicial activism. This legal phenomenon may be understood as a stance involving a specific and proactive mode of constitutional interpretation, expanding its meaning and scope, while simultaneously raising concerns as to whether the judiciary may be encroaching upon the legislative function. Judicial activism commonly arises, as has been observed in Brazil, in contexts of legislative inertia and a certain detachment between the political class and civil society, which prevents the effective satisfaction of social demands. The Federal Supreme Court, through a dynamic approach, has moved beyond a merely contemplative role to assume a more assertive position in defending the effectiveness and expansiveness of the Constitution. In this sense, judicial activism is associated with a broader and more intensive participation of the judiciary in the realization of constitutional values and objectives, with greater interference in the spheres of the other two branches of government.