Ativismo judicial e eficácia dos direitos sociais: limites, mecanismos e legitimidade democrática

Abstract

This research aims to analyze the phenomenon of judicial activism, the judicialization of public policies and the legal and institutional challenges to guarantee the effectiveness of social rights. Throughout this work, the impacts of the new reading on the separation of powers will be analyzed, in addition to the new techniques of interpretation and application of fundamental rights in judicial action in terms of social rights, inquiring about their limits, mechanisms and democratic legitimacy . The transition from the liberal State to the Social State inaugurated a new range of socioeconomic rights and obligations, enforceable in the face of the public power, which were positive in the constitutions and in international agreements, enabling their justiciability. Furthermore, just like the role of the State itself, judicial activity has changed significantly over the years, especially with the assimilation of new legal and philosophical theories, with emphasis on neoconstitutionalism and post-positivism. Thus, from a discreet and restricted bureaucratic function, the judicial activity was elevated to one of the protagonists of the materialization and effectiveness of fundamental rights. The central hypothesis of this research consists of the fact that, in order to be legitimate, the aforementioned activity must take place within the strict limits of legality, under penalty of tarnishing the adequate and healthy judicialization of social rights, degenerating it into judicial activism, understood as the discretionary, deviant and illegitimate exercise of jurisdiction. Thus, using the hypotheticaldeductive methodology, with bibliographical, jurisprudential and documentary research procedures, it was sought to demonstrate that, in order to reconcile the legitimate judicial enforceability of social rights with the preservation of the democratic regime and the separation of powers, it is necessary to adopt theoretical and institutional mechanisms of control and cooperation over judicial activity, with emphasis on proportionality and reasonableness; selfrestraint and accountability; constitutional/institutional dialogues; and the cost and sustainability of social rights.