¿Jueces legisladores?

AUTOR(ES)
FONTE

Rev. Investig. Const.

DATA DE PUBLICAÇÃO

15/04/2019

RESUMO

Abstract The judge’s acts through decisions that are each time more wide and generic show a performance resembling a legislator, creating solutions similar to the law. The subject raises questiones such as: are these actions possible? In other words: from a legal perspective, is it admissible or recommended this performance? On one hand, some of the classic characteristics of constitutionalism, such as separation of powers, do not corroborate with this posture. On the other hand, there are claims for the necessity of these actions in some cases, which requires certain abstraction. It can be observed, therefore, that both positions can be used with the proper argumentation. Still, the search for equity and justice in the decisions - an important part of adjudication - requires a more orthodox praxis of the judges in searching for the better solution for the case. That would be, most of the time, to solve the generalizations made by the legislators when making a statue, what means a neutralization of the hypothetic legislative role of the judge.

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