Ulysses and the sirens: About judicial activisms and the dangers of creating a “new constitutional convention” by the judicial power

Authors

  • Lenio Luiz Streck UNISINOS
  • Vicente de Paulo Barretto UNISINOS
  • Rafael Tomaz de Oliveira UNISINOS

DOI:

https://doi.org/10.4013/47

Abstract

In the last years, Brazilian law has been taken by a theoretical line that admits and defends the need for judicial activisms to solve political and social problems presented by everyday life. The last attempt was a constitutional lawsuit – known in Brazil as “Arguição de Descumprimento de Preceito Fundamental” ADPF n. 178 (Claim of Disobeying a Fundamental Precept) – proposed by the Attorney General's Office with the purpose of regulating marriage between persons of the same sex. In this article we problematize this issue by demonstrating how such intent would express a serious democratic risk because it has become the judicial review in an everlasting constitutional power, although it is founded on good intentions.

Key words: Constitutionalism, Judicial Activism, Hermeneutics.

Author Biographies

Lenio Luiz Streck, UNISINOS

Doutor em Direito pela UFSC; Pós-Doutor em Direito Constitucional pela Universidade de Lisboa; Professor Titular do PPGD da UNISINOS.

Vicente de Paulo Barretto, UNISINOS

Livre Docente pela Pontifícia Universidade Católica do Rio de Janeiro (PUC-RJ); Professor Visitante do PPGD da UNISINOS

Rafael Tomaz de Oliveira, UNISINOS

Mestre e Doutorando em Direito Público pela Unisinos; Bolsista do CNPq; Professor Universitário

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Published

2010-07-26

Issue

Vol. 1 No. 2 (2009): July/December

Section

Articles

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