As raízes históricas do ativismo judicial na tradição jurídica norte-americana e sua repercussão no debate hermenêutico constitucional: o império dos homens sobre o direito

Abstract

This paper investigates primarily the meaning of the term "judicial activism", whose use has gained importance in major legal debate, especially in countries of recent democratic tradition, such as Brazil. The present work is not confined to a purely semantic study, instead this study aims to establish the necessary connection between the meaning of the phrase and the legitimate limits of judicial activity. We sought, therefore, the earliest contours of speech in American history, an article published in Fortune magazine (The Supreme Court: 1947), by an important historian - Arthur Schlesinger Jr. Despite the richness of the essay detail, the long narrative about the Justices who constituted the Supreme Court has actually increased the inaccuracy of its meaning. Moreover, it has revived the important discussion about the role of the judiciary, within the democratic institutional design. The controversial decision rendered in the United States, in Marbury vs. Madison where Marshall solidified the construction of the judicial review, has revealed the tradition of criticism of judicial errors in the US political debate, reciprocally conditioned and conditioning to understanding the Schlesinger's terminology. The interpretation of the phrase linked an unequivocally critical tone, the evaluation of judicial errors, remaining uncertain, however, the precise outline of the content of possible abuse. The difficulty to assign a unique and precise meaning to the terminology brought a deeper reflection on the more grinding constitutional issue of the hermeneutic debate: the definition of the very concept of law. We opted for the "theory of integrity", by Ronald Dworkin, as the best theoretical construction of the law. Starting from the counterpoint provided by Dworkin to the positivism of Herbert Hart and traditions of the U.S. legal pragmatism, we delimited a more specific outline of the meaning to "judicial activism." Finally, we acknowledge the caveat about the difficulty of an undeniable significance to the terminology, because of its interpretative character.