Apontamentos para um debate sobre o ativismo judicial

Article about the critical notes of judicial activism. The starting point of these notes is to be the prior clarification of what is meant by judicial activism and judicial creation of law, two concepts which, by their proximity, giving rise to misunderstandings and controversies. Judicial activism is presented in the literature as an alleged invasion of the jurisdiction of the Legislature, but that this alleged usurpation of power is indispensable to accomplish the Constitution and make effective the fundamental rights against possible aggression by the legislature. Regarding the creation of law by the judge, the point is not whether it can or should take active and autonomous role in drafting the law, but to determine how and to what limits will be made this inevitable and necessary collaboration, because every law needs judicial consistency. As a conclusion, it is recognized that the judge has been the lifeblood of legal progress, the laborious architect of the new law against outdated formulas of traditional law, so-called judicial activism is just a new expression with which you want to rename uncritically, the immemorial judicial creation of law.