JURISDICTIONAL ACTIVITY AND THE ENFORCEMENT OF FUNDAMENTAL RIGHTS AND GUARANTEES: JUDICIALIZATION, ACTIVISM AND JUDICIAL PASSIVISM

• DOI: https://doi.org/10.22533/at.ed.2164142420068

• Palavras-chave: Judicialization. activism and judicial passivism.

• Keywords: Judicialization. activism and judicial passivism.

• Abstract:

  Judicialization and judicial activism are issues raised quite frequently in legal circles, with little attention paid to judicial passivism. There is even confusion regarding concepts. The point of intersection between these concepts lies in the fact that there is a counter-majoritarian difficulty in the Judiciary, which is not made up of representatives elected by the people, and this Branch often has the last word on the law. The present work aims to conceptualize and present the positive and negative aspects of judicialization, activism and judicial passivism, in the light of academic literature. Starting from the premise that the Democratic Rule of Law can only be understood as such with the enforcement of fundamental rights, the parameters for self-restraint of the Judiciary are presented. Whenever this is required, in case of omission of other powers, the aim is to overcome the counter-majoritarian difficulty, with the main parameters being the defense of vulnerable minorities and the maintenance of the necessary assumptions for the functioning of democracy.