BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

On law, politics & judicialization (Martin Shapiro and Alec Stone Sweet) 3 and Towards juristocracy: the origins and consequences of the new constitutionalism (Ran Hirschl). 4 From another perspective, the article Decision-making in a Democracy: The Supreme Court as National Policy Maker (Robert A. Dahl) points to the incisiveness of judiciary power in driving political life. 5 This issue is the great contemporary dilemma. To overcome the forms of rationalistic/ exegetical positivism (exegetical forms), jurists must (but have not yet) succeed in creating the conditions needed to control proactive positions. These conditions are no less positivist if they are registered by betting on the discretionary power of the judges. If the interpreter was previously subjugated to a pre-established framework, then starting from the twentieth century, the interpreter has faced a new dilemma. That is, how does one establish controls for the interpretation of the law and prevent judges from co- opting the democratically constructed legislature? One symptom of this problem resides in the growth of judicial activism, especially in countries such as Brazil. Judicial activism undermines the degree of autonomy achieved by the law in this new paradigm, and this is exactly why it poses such a challenge for fundamental rights in the 21 st Century. 2. Judicial activism: an example of how the theory has been incorrectly presented in Brazil The term judicial activism has also been used in Brazil as a tabula rasa. In the U.S., the tenure of judges and judicial activism has been discussed for more than two hundred years. However, we cannot forget that judicial activism in the U.S. was initially conducted in reverse such that one cannot consider activism to always be a beneficial force. A typical case of reverse activism was the position of the U.S. Supreme Court regarding the New Deal . Clinging to the principles of laissez-faire and economic liberalism , the Supreme Court ruled that the interventionist measures established by the Roosevelt administration were unconstitutional. 6 Interventionist attitudes in favor of basic human rights occur in a context that depends much more on the individual actions taken by an established majority than on the result of an activist ideal. For example, the case of the Warren Court was the result of the personal conceptions of a certain number of judges and not the result of a constitutional sentiment on the issue. In Brazil, the thesis of judicial activism has taken on an air of drama. We can draw an example of the judicial activism that pervades the minds of Brazilian jurists from the question brought to trial in the Action of Breach of Basic Law (Arguição 3 SHAPIRO, M.; SWEET, A. S.: On law, politics & judicialization . New York: Oxford University Press, 2002. 4 HIRSCHL, R.: Towards juristocracy: the origins and consequences of the new constitutionalism . Cambridge: Harvard University Press, 2007; also by the same author: The new constitutionalism and the judicialization of pure politics worldwide. Journal of Administrative Law , n. 251, May/August, 2009, pp. 139-175. 5 DAHL, R. A.: Decision-Making in a Democracy: The Supreme Court as National Policy Maker. Journal of Administrative Law , n. 252, September/December, 2009, pp. 25-43. 6 Cf. WOLFE, C.: The Rise of Modern Judicial Review. From constitutional interpretation to judge-made law. New York: Rowman & Littefieleld, 1994.

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