Judicial Activism

Philosophy is abundant in helping us with concepts, so that we understand reality with greater clarity. In fact, its name itself has an etymological origin in the Greek phylos – love and sofia – wisdom. Love for knowledge.

Well then. Classical philosophy studies brought us the view that man is a universe in himself. After all, if God made man in his image and likeness, he wanted to reproduce the macrocosm in the figure of each individual, with each one of us being a microcosm, which reproduces the Universe.

The problem is when each of these men, when invested with legal power, decides to transform themselves into an island of wisdom, interpreting the laws and the constitution in their own way… To that end , we call it judicial activism.

Imagine, then, that today, a fierce Law student, fighting to pass a public exam, serve society, studies the authors praised by the exam examiners , devours laws and jurisprudence, leaving aside your personal value judgment, in order to assimilate as much information as possible, to be approved…

Result: approval in a judicial exam! But... once sworn in, this judge begins to understand things differently... now, when it would be possible to act with a certain functional independence and autonomy, he decides to make his own interpretations of the law and the constitution...

Within the limits of what the legislator meant when he made the law – and this is called respecting the originalism of laws and their textuality, according to the great Antonin Scalia: no innovate, but extract the meaning of what the legislator meant – the magistrate could even interpret the law, applying it to the specific case at hand.

However, by extending the scope of the law, extracting from it whatever you wish, adapting it to your understandings and making it elastic, given what you understand the legislator failed to do , it is precisely at this time that judicial activism is born.

But let's go, explaining better what I mean: if our legislator, for example, in the Federal Constitution, that is, the Constituent Assembly, created to form the content of CF, said, in the fifth article, that the right to life is guaranteed, and that it is unavailable.

Allied to this right, we have the penal code, punishing in its articles 124 to 127 the crime of abortion, that is, the pregnant woman herself, or whoever helps the pregnant woman to carry out an abortion abortion. It's clear to all of us that abortion is a crime, right? So much so that it is punished by the CP, and there is the fundamental right to life, preserved there by article 5. However, that person who became a magistrate the day before yesterday began to consider himself, as Thomas Sowell says, an intellectual anointed by God, practically an enthroned absolute monarch, and decided that the right to freedom, to “my body, my rules”, is absolute and superior to the right to life.

In this way, if such a case of article 124 crime falls into his hands, this judge understands that there is no crime to punish, as the pregnant woman does what she wants with her own body. But what about the right to life of that little baby in the womb? Well, this will be relativized by the right to freedom. Like this? Well, because the judge understands that the fundamental rights to life and freedom are equivalent!

But... this judicial activism does not begin at the first level of jurisdiction. It comes from the higher courts, and in a cascade effect, it begins to dominate all other judging bodies. When interpreting laws, in defense of their own points of view, without evaluating the will of the legislator, the judge begins to be an activist, acting in favor of their own causes and opinions, disfiguring the Law and the laws.

Ah, but the judge is filling gaps in the law, adapting it to modernity. It will be? If the legislator wanted gay marriage, wouldn't it be provided for in an amendment to the federal constitution? If you wanted to allow abortion or the legalization of drugs, wouldn't you either? This is not a loophole in the law. It was not the legislator's will to regulate this. And judges need to accept this.

All over the world, we have seen the advance of neoconstitutionalism. But what would that be? It would be an interpretation of the constitution in the light of principles, which in countries that call themselves democratic, especially, are in profusion in their constitutions.

Raising these principles to the category of superior to laws, judges create a plasticity, an elasticity for their interpretation, that nothing will be left out. No law will have the power to block the advancement of decisions based on constitutional principles.

However, the constitutional principle does not have this superpower... it needs to be interpreted in light of the legislator's will, and not overriding it. But why? For a very simple reason: The legislator was elected by the people, to legislate. He was given a mandate to create laws that regulate life in society.

The judge was not elected. He either took the exam, or was appointed to his position, which is normally for life, and did not receive a power of attorney from the population to legislate in his name. Therefore, it is absolutely illegal and kills the tripartition of powers, this unbridled activism that has been seen around.

And what would JURISTOCRACY be? Well, juristocracy is an offshoot of activism. Every time the Judiciary, through its decisions and interpretations, based on the free conviction of members of the judicial courts, the tendency is for this power to, little by little, become preponderant over the other powers, generating an imbalance between the three.

Because if the legislative function does not belong to it, but its members insist on exercising it, this Power will soon swallow the others. This is called Juristocracy: a country governed by judicial decisions, and no longer by executive and legislative laws.

In dictatorships, such as Venezuela and Cuba, as well as in Hitler's Germany and Mussolini's Italy, this procedure was quickly established, with court judges deciding, in accordance with the desire of the dictators in power, under penalty of being removed from their positions.

By bowing to the desire of the rulers, adapting the interpretation of laws to what pleases the regime, these magistrates created a predominance of the judiciary over the other powers, causing an imbalance so evident that Hitler's judges were called Reich Judges, many of them having been arrested and convicted after the fall of the regime, and even declaring, in their trials, that they were unaware of the existence of concentration camps in their country.

This is a typical example of juristocracy.

But can't the legislature and the executive do anything? Obviously yes. The constitutional legislator provided the three powers with effective constitutional remedies, so that abuses can be curbed.

Unfortunately, it is clear, observing the dynamics of countries in which juristocracy has established itself, that it is comfortable for the other powers for the Judiciary to call the shots. Often, there is a veiled agreement between the heads of the 3 powers, who admit this predominance of the judiciary, in exchange for other advantages, be it corruption cases archived, appointments of dubious people to higher courts, with the approval of the top judiciary, revocation of mandates of personas non gratas for them…

Where shamelessness prevails, criminal activity takes hold. And that is why we have seen a dizzying growth of this neoconstitutionalism, which serves the interests of powerful people.

As long as universities are a hotbed of ideologies and positions favorable to neoconstitutionalism, we will not be able to create legal practitioners committed to law, order, the essence of the Constitution (which, by the way, By the way, ours was also born compromised).

Article published in Knowledge & Citizenship Vol. II No. 35