Fundamental Rights, Judicial Activism, and the Judicialization of Politics: The Limits of Judicial Power

Abstract

This article analyzes the relationship between fundamental social rights, the judicialization of politics, and judicial activism in the context of post-1988 Brazilian constitutionalism. Using a theoretical and jurisprudential approach, it examines how the Federal Constitution, by establishing a broad set of social rights requiring positive state action, has assigned the Judiciary a significant role in their enforcement, particularly in the face of omissions by the Legislative and Executive Branches. Based on the conceptual distinction between the judicialization of politics, understood as a contingent phenomenon associated with social demands and shortcomings in state action, and judicial activism, understood as a decision-making approach that may exceed the constitutional limits of the judicial function, the study investigates the criteria capable of legitimizing or limiting judicial intervention in the field of public policy. The analysis draws on specialized literature concerning constitutional jurisdiction, fundamental rights, democracy, separation of powers, and legal interpretation, together with an examination of landmark decisions of the Federal Supreme Court. It concludes that constitutional jurisdiction can play an important role in protecting and enforcing fundamental rights, particularly in cases of state omissions incompatible with the Constitution. Such intervention, however, does not constitute unrestricted authorization for the judicial creation of obligations, prohibitions, or restrictions without sufficient constitutional or legal basis, as this could undermine the democratic principle, the separation of powers, and the institutional balance among the branches of government.