Judicialização, ativismo judicial e legitimidade democrática
23 Nov 2009-Iss: 13, pp 17-32
TL;DR: In this paper, the authors analyse certain signs of particular relevance in this phenomenon: the judicialisation of life, judicial activism and its incidence on democracy in Brazil and its Federal Supreme Court.
Abstract: There has been progressive growth in the powers of the constitutional jurisdiction in many countries. Brazil and its Federal Supreme Court has been no exception. However, we can analyse certain signs of particular relevance in this phenomenon: the judicialisation of life, judicial activism and its incidence on democracy.
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03 May 2019
TL;DR: A judicializacao da politica pode ser interpretada as um procedimento jurisdicional ao qual pugna, em termos concretos, proceder a aplicacao do principio da igualdade e acesso as liberdades e direitos do Estado as discussed by the authors.
Abstract: Neste artigo serao abordados alguns aspectos relativos as acoes afirmativas do Estado quando, em sua omissao ou falhas nas politicas publicas aplicadas, acabam os direitos de minorias somente sendo resguardados atraves de interferencia judicial, visando garantir acesso a bens e direitos fundamentais. Toda esta problematica sera abordada e correlacionada, ainda, na visao do autor John Rawls, com base em sua obra maior "Uma teoria de justica". Neste sentido, a judicializacao da politica pode ser interpretada como um procedimento jurisdicional ao qual pugna, em termos concretos, proceder a aplicacao do principio da igualdade e acesso as liberdades e direitos do Estado. Assim sendo, sem o objetivo de esgotamento do tema, sera apresentada problematizacao nesta seara, especialmente quando a judicializacao de politicas publicas se coloca em conflito com a dicotomia direito e politica.
3 citations
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TL;DR: In this paper, the authors conceptualize and approach the judicial activism and the state of exception to search and reveal if there is any similarity, to then draw up a possible answer to the concern of forming a dictatorship of the judiciary.
Abstract: The judiciary has excelled in the international and national scene, reaching role of great importance, thus creating opposition to the legislative and executive powers. The center of gravity of the sovereign power of the state moves toward the judiciary, that happens to have a more active role and controlling of the others powers, but also appears as a great defender of social and fundamental rights causes, seeking to make an effective constitution. Its great public notoriety has attracted great distrust of various sectors of society, especially by the two powers that have an increasing interference. Arises, therefore, a speech that the judiciary would be reversing into a big and uncontrollable power, increasing the suspicion that now it would be living in a real dictatorship of the judiciary through judicial activism. There is a growing concern with the expansion of activism and the role of the judiciary. The purpose of this work is to conceptualize and approach the judicial activism and the state of exception to search and reveal if there is any similarity, to then draw up a possible answer to the concern of forming a dictatorship of the judiciary. The state of exception is one of the rule of law paradoxes, while activism is a political manifestation of the judiciary. The similarity between the institutes appears as appalling in a dynamic expansion of political power of a state institution exercising judicial function, putting in check who would be the sovereign in a rule of law and democratic state.
2 citations
Cites background from "Judicialização, ativismo judicial e..."
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TL;DR: In this paper, a study on the judicialization of health relative to the granting of beds of adult intensive care units, through the Judicial Power in the Brazilian state of Maranhao, is presented.
Abstract: Study on the judicialization of health relative to the granting of beds of adult intensive care units, through the Judicial Power in the Brazilian state of Maranhao. The objective of this study is to understand the phenomenon of judicialization, based on the characteristics of the lawsuits in relation to claimant, defendant and process, understanding the judges’ criteria for their decisions and verifying compliance with these decisions, due to the significant increase in the number of lawsuits originated by the demand of beds in adult intensive care units in Sao Luis, capital of the state of Maranhao. It is a documentary study, with a selection of 25 legal cases with final judgments, containing an intensive care unit request, occurred between January 2009 and February 2016. The results showed that individual actions with an adult intensive care unit demand corresponded to 100%; actions with the representation of a private lawyer, 60%; from the public health service, 64%; male gender, 56%; and elderly people in the age range between 80-99 years, 44% being these the revailing processes among those selected and analyzed. The majority of judges used the BrazilianConstitution of 1988 markedly the right to health, as the criterion for decision-making. In compliance with the decisions, a greater number of patients had access to intensive care units. In view of the need for dialogue between the Executive and Judicial powers, to expedite the fulfillment of demands, the importance of the sanitary mediation institute is increasing as a more effective alternative of negotiation between public and private health systems and the Judicial Poweror all.
2 citations
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11 Aug 2020
TL;DR: In this paper, the authors present a proposal by Enrique Dussel regarding the treatment and recognition of new fundamental rights in Brazil, analyzes the judicialization of the law, as a political-legal tool for the realization of new rights and, finally, discuss issues of judicial activism.
Abstract: It presents a proposal by Enrique Dussel regarding the treatment and recognition of new fundamental rights. Analyze the judicialization of the law, as a political-legal tool for the realization of new rights and, finally, discuss issues of judicial activism, face more complex the recent performance of the Brazilian courts. Social struggles have passed like streets and are now covered in the court's guidelines. The precedents of these courts have been converted into an essential one of the current law, with legitimacy granted by institutions and justified by the need to verify the effectiveness and implementation of fundamental rights.
2 citations
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TL;DR: In this paper, the authors analyze Brazilian judicial decisions, demonstrating that judicialization is not the best way to solve problems arising from adverse events caused by vaccines, and that there is a lack of preparation among the professionals involved, as well as contradictions, insecurities and injustices in decisions.
Abstract: Science has made important contributions to improving people’s well-being, achieving remarkable advances that protect them from illnesses. Vaccines are one such example, and serve as a tool to improve the lives of the global population. Vaccines have risks the consequences of which are not fully known, however, making surveillance systems that neutralize or reduce adverse events vital. In Brazil, vaccination policy is “compulsory”, restricting the autonomy of the individual, who as a “victim” of adverse events then needs to seek redress through legal action, as the State does not have a national compensation policy. With the support of Bioethics and human rights, this article aims to analyze Brazilian judicial decisions, demonstrating that judicialization is not the best way to solve problems arising from adverse events caused by vaccines, and that there is a lack of preparation among the professionals involved, as well as contradictions, insecurities and injustices in decisions.
2 citations