Tripartição dos poderes: limites da interferência do Judiciário no campo da discricionariedade legislativa por meio de decisões ativistas

Abstract

The state, as a protector of its citizens, has important functions, essential to its maintenance, such as the regulation of the various existing legal relationships through general rules, as well as their regular application, management of the public sector, as well as judging conflicts of specific cases in compliance with the rules created. From this perspective, in modern democracies, the attribution of functions to different state bodies becomes essential, not only in the search for better efficiency, but also to avoid tyranny. Thus, the theory of “checks and balances” in the separation of powers stands out, which aims to balance the state’s power. However, although this idea was successful by a majority, the existence of conflicts found in the application of this theory cannot be denied, especially in the overlapping of the Judiciary Branch in prominence with the other powers. Therefore, the present work aims to analyze the limits of the judiciary in its typical function compared to the typical functions of other powers. To this end, bibliographical sources and data research were used to demonstrate concrete cases that sometimes highlight deviations that are incongruous with the theory of separation of powers on the part of the Judiciary.