The Brazilian Judicial System

Improved Essays
Considering the current judicial and political scenario in Brazil, the Judiciary Body became considered a function that allows the people to put their trust in judicial decisions, thereof as being the most effective means of achieving equity in Legal and Social Affairs, thereby providing an expected peace and social justice alluded by the Constitution.
Similarly, such institutional development of this function, led the Brazilian Supreme Courts to move forward on certain issues that originally were not under its jurisdiction. This process arose due to extensive ineffectiveness of the Legislative and Executive Branches in acting to meet, with justice and speed, the interests of the community.
In this sense, it becomes necessary to incorporate
…show more content…
These limits contrast the issues surrounding the judicial activism within the context of the Superior Courts, specifically in relation to the JSC (Justice Superior Court) and FSC (Federal Supreeme Court).
In Short, the activism of the judiciary in Brazil is a reflection of another legal expression, for what we called jurisprudence of law. The encounter in the legal world with the increasing ineffectiveness of the Legislative and the metalling of encodings with social development becomes the jurisprudence or the binding precedents as a creating or renovating sources of the law.
These phenomenological events are the result of the growing current judicial activism and, as such, are the focus of constant doctrinal discussions, which somehow allows the standarts to develop and evolve from these new ways of interpreting the norm and legal
…show more content…
It is in this aspect that reveals the mission of the constitutional court, which in constitutionality control matters, and performs a technical analysis of the science of law, since it is not subject to political convenience.
As is known, pursuant to Article 52, section X of the FC/1988, the legislative entity considers that is not imperative the suspension of the rule to be considered unconstitutional, in whole or in part, as a decision from the Supreme Judiciary Court. In addition, the absolute majority of the members of the Federal Senate may disregard that same decision. This is the interpretation for the description of the normative text.
Therefore, we discuss the possible existence of an invasion or reversal in the typical jurisdiction of each function of power, through typical legal phenomenon of reality imposed by the democratic state of law, once it increases the number of times that the Supreme Court launches decisions with normative content without this previous analisys by the

Related Documents

  • Superior Essays

    Yet, if the law is positivist, then arguably we are more inclined to Faithful Agent theory. This means that judges must concede to the will of Parliament, as they are the best institution for shaping laws in a pluralistic society. However, there is still room for movement, as judges may decide cases to guide behaviour in the penumbra of uncertainty. Consequently, it is possible to balance these extreme perspectives in reality, as institutions must place checks on one another. Ultimately, the extent to which judges and Parliament shape the law changes on where the line is drawn between protecting rights, and what we regard as politically constitutional and requiring state…

    • 1728 Words
    • 7 Pages
    Superior Essays
  • Decent Essays

    This means that the Congress or the President should follow the constitution word for word. While the Federalist party held the ideas of general meaning. That said, the Congress or the President has the right to interpret the constitution based on significance. Over all this means that if the constitution doesn’t say it can’t do something then the Federalists believe they have a right to do it. As you can see the two parties show very different ways that they view the constitution as a whole.…

    • 411 Words
    • 2 Pages
    Decent Essays
  • Great Essays

    Government Vs Constitution

    • 1410 Words
    • 6 Pages

    Jefferson’s first approach to constitutional interpretation is that each branch must decide for themselves the constitutionality of a law, “equally without appeal or control” from the other two branches. A branch is deemed the “rightful” expositor of the validity of the law, disregarding the opinions of the other branches. A strength of this is that each branch can interpret the Constitution for themselves and focus on how the Constitution relates to the interest they are focusing on. They are able to form stronger opinions, since they will not be second-guessing their opinions based on the input of the other branches. A disadvantage, as Jefferson points out, is that contradictory decisions may arise, which results in confusion and produces inconvenience.…

    • 1410 Words
    • 6 Pages
    Great Essays
  • Superior Essays

    10th Amendment Federalism

    • 990 Words
    • 4 Pages

    Kennedy said this should be disallowed because it runs counter to the idea that the federal government has only limited powers. That idea of limited federal power, while stated in the 10th amendment, was established by the enumerated powers of Article 1, Section 8, especially in the necessary and proper clause. By stating that Congress may enact laws vested in it by the Constitution, the clause implies that there exist other powers not constitutionally vested, which Congress does not have. This idea of division of power established in Article is the basis for the eventual reigning-in of Congress’ previously ominous commerce…

    • 990 Words
    • 4 Pages
    Superior Essays
  • Improved Essays

    Justice Macalia Textualism

    • 1571 Words
    • 7 Pages

    As argued by Judge Richard A. Posner, strict constructionism, or what he refers to as “legal formalism” adheres to principles of the law that are “too narrow” (O’Brien 204). Judge Posner further argues that in legal formalism, the text of the law is meant “to decide whether the right exists,” as they are written in the Constitution (O’Brien 204). By that account, although strict constructionism only reads the text and uses a literal meaning, it still applies the literal intent of the law. For that reason, Judge Posner argues that when using the element of meaning, Judges cannot make their decisions by reading the text directly (O’Brien 207). As Judge Posner states, the Constitution does not say, “read me broadly or read me narrowly” (O’Brien 207), as to suggest that the meaning of the text should not be interpreted…

    • 1571 Words
    • 7 Pages
    Improved Essays
  • Improved Essays

    [8] Of course, this seem to fit the judicial review process by providing the Court the ability to ensure individual rights and maintain the living constitution as new issues arise in changing society. On the other hand, the living constitutional ideal adds that interpreting the meaning of the Constitution under old views is outdated and needs to evolve without being formally amended. [9] The founding fathers were aware of the need for change to fit the needs of society, but to make those changes it must be formally amended and not left up to the judiciary branch to make that decision. This is apparent under U. S. Const. art.…

    • 868 Words
    • 4 Pages
    Improved Essays
  • Great Essays

    They adjust their outcomes based on the responses of the government. In the Obergefell case, the court should exercise the constitutional laws of a democratic system while avoiding the whims of the majority. The court must play the essential role of a protector of the constitutional rights. The efforts will probably result in a difference in opinions from the law enforcers in the case, but it is the only way to practice democracy. (Katz, par.…

    • 1148 Words
    • 5 Pages
    Great Essays
  • Improved Essays

    Understanding the distinctive characteristics of democracy, O’Connell helps the reader to understand there the significant difference between civil society in the United States and other countries. Based on his interactions with individuals from various countries, he concludes “there is a universal hunger for participation and influence within one’s own surrounding [...]” and “effective societies exist in direct proportion to their degree of citizen participation and influence” (O’Connell, 5-6). Specifically, in the United States, citizens expect rights to be granted along with fairness and justice in social exchanges; however, O’Connell argues that if Americans continue to take such liberations for granted, the potential strength of democracy will inevitably weaken. Suggesting that citizens take full advantage of their liberties, O’Connell highlights the significant role of the nonprofit sector within civil society. In this chapter, the nonprofit sector is identified as a buffer zone designed to enhance democracy through encouraging independent citizen initiative outside the government and personal commitment to service.…

    • 1006 Words
    • 5 Pages
    Improved Essays
  • Great Essays

    In response to Posner’s, treaties are effective even when courts are too weak to enforce them because they codify a public view about how its government should behave. Human rights are more than laws they are a reflection of higher aspirations as human beings. Human rights treaties are important because they protect everyone and shine a light on a positive path…

    • 1866 Words
    • 8 Pages
    Great Essays
  • Improved Essays

    Corey Shdaimah's Analysis

    • 855 Words
    • 4 Pages

    The author is especially interested in how cause lawyers understand their role in being lawyers and professionals for social change. Therefore, in order to understand that, it is imperative that one must also understand how hard legal mobilization can be due to the slow nature of the legal system. The research conducted through the interviews showed varying levels of legal consciousness by the lawyers. As a result, each lawyer had a different perspective regarding what the law was all about and how useful it was to their movement. The author argues, therefore, that the understanding of the law and the legal system is imperative to becoming a successful and relatively happy cause lawyer.…

    • 855 Words
    • 4 Pages
    Improved Essays