Flexibilidade de parâmetros e transbordamento da atuação judicial na efetivação de direitos fundamentais: a fluidez do direito

Abstract

This dissertation addresses the substantiation and the limits of the judicial actions on the effectuation of fundamental rights. The contribution of this work relies on 1) the manner in which the theme is handled, through the prism of the flexibility of these parameters; 2) the stance of the criticisms on the subject that substantiates and limits this judiciary activity, connecting it to the ethicality and the constitutionalism; 3) the proposal of the concept of the Liquid Law, derived from reflections on the liquidity of modernity and the concerns over the maintenance of legal security, of the coherence in the application of the law and of justice in the contemporary world. The discussions over legal security and coherence are at the core of the tension between the separation of powers and the effectuation of fundamental rights, contributing to the designation of parameters of the judicial functions. The exercise of that function creates implications in the very definitions a posteriori of these parameters, and still produces effects that reach beyond the legal sphere. Thence, a legal model in the making, which emphasizes the fluidity of the law, is the result achieved in the present theoretical study on the actions of the Judiciary Power, effectuation of the fundamental rights and justice in the Democratic Constitutional State.