Ulysses And The Sirens: About Judicial Activisms And The Dangers Of Creating A “New Constitutional Convention” By The Judicial Power

Abstract

In the last years, the Brazilian Law has been taken by a great amount of theory that admits and defends the need for judicial activism to solve daily political and social problems. The last temptation in this sense was made through the Breach Claim of Fundamental Precept n. 178 proposed by the Attorney’s General Office with the intention of regulate the union of people with same sex. On this present article, we intend to discuss this issue, demonstrating that although founded on good intentions such measure would represent a serious democratic risk because it would transform the constitutional jurisdiction into a truly permanent constituent power. Keywords: judicial activism, homoaffective unions, constitutional jurisdiction