TIPOLOGY OF CONSTITUTIONAL. JUDGMENTS: JUDICIAL ACTIVISM AND TENSION WITH SEPARATION OF POWERS

Abstract

The work aims to describe the diversity of decisions typologies used by Courts or Constitutional Courts in the control of constitutionality, due to the relativism of the binary standard of law (constitutionality / unconstitutionality). From there on, it is
analyzed the developments of a possible judicial activism and how it interferes with the Separation of Powers. For this purpose, initially, the historical evolution of the control of constitutionality was analyzed and, based on doctrine, the spectrum of possibilities
that opened up to constitutional judges, during the hermeneutic exercise in face of the constitutional rule. It was also analyzed the role of the Courts and Constitutional Courts in the Democratic Rule of Law and the possible consequences when the duty of selfrestraint is not observed. It was empirically demonstrated hypotheses, in which this duty was respected, as well as others in which flexibilities by the Brazilian Supreme Court were admitted. Finally, possible solutions were presented to avoid the institutional crises resulting from the application of these kinds of constitutional sentences in the face of the Separation of Powers.