JUDICIAL ACTIVISM: A LIVING IMAGE OF LAW REFLECTED IN THE SOCIAL MIRROR

Abstract

The article analyzes the instrumentalization of the law for the purpose of promoting social emancipation. It hypothesizes whether the protagonism attributed to the Judiciary in the Democratic State of Law at the turn of the last century to the twenty-first century materializes the promises of modernity based on the theory of the social contract and driven by the Enlightenment ideology to make effective the freedom and social rights of the Constitution. To this end, first, legal positivism is presented, in search of the recognition of the subjects and equal participation; second, the historical bases of the constitutions are established, to confirm the metamorphosis of the law and the model of jurisdictional control by the main and incidental routes; to, third, show judicial activism, mapping the decisions of the Supreme Court. It concludes on the importance of the Judiciary in the realization of positive and negative rights. The article was guided by the hypothetical-deductive method and was based on books, scientific articles, legislation and jurisprudence.

DOI:https://doi.org/10.56238/sevened2024.031-043