The case ADPF 132: is defending the constitutional text a positivist (or originalist) attitude?

Authors

Keywords:

Judicial activism, hermeneutics, Brazilian Federal Supreme Court (STF), legal positivism, same-sex marriage

Abstract

In the last years, the Brazilian Constitution has been taken by a theoretical line that admits and defends the need for judicial activisms to solve political and social problems presented by everyday life. The last attempt was a constitutional lawsuit ”“ known in Brazil as “Arguição de Descumprimento de Preceito Fundamental” ADPF n. 182 (Claim of Fundamental Principle Violation) ”“ which purposes the judicial regulation marriage of same-sex persons. In this article it is problematized by demonstrating how such intent would express a serious democratic risk because it has become the judicial review in an everlasting constitutional power, although it is founded on good intentions.

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Author Biography

Lenio Luiz Streck, Universidade do Vale do Rio dos Sinos (Unisinos), RS

Professor of University of Vale do Rio Sinos (UNISINOS). PhD in Law from UFSC. (http://lattes.cnpq.br/0806893389732831)

Capa da Revista Direito.UnB Volume 1, Número 1

Published

2014-01-01

How to Cite

STRECK, Lenio Luiz. The case ADPF 132: is defending the constitutional text a positivist (or originalist) attitude?. Direito.UnB - Law Journal of the University of Brasília, [S. l.], v. 1, n. 1, p. 280–304, 2014. Disponível em: https://periodicos.unb.br/index.php/revistadedireitounb/article/view/24685. Acesso em: 24 nov. 2024.

Issue

Section

Case notes & commentaries