Julgando por princípios: criação judicial de direito, discricionariedade e a aplicação direta de normas abertas

Abstract

The expansion of judicial power is a global phenomenon. In Brazil, this process has unfolded with singular intensity and speed, exhibiting peculiarities in relation to the traditional model. Over the course of approximately three decades, the Brazilian Supreme Federal Court has produced a greater number of landmark precedents than the United States Supreme Court has over two centuries, placing it among the most powerful constitutional courts in the world. The Brazilian Judiciary demonstrates an unprecedented degree of institutional resilience against authoritarian threats, a robustness unparalleled in other historical periods of the nation. This study is grounded in an analysis of the factors that enabled such expansion, with the objective of understanding the Judiciary’s current role in institutional life, not merely as an adjudicator but as an active co-participant in the construction and creation of law. The research scrutinizes the legitimacy and feasibility of rationalizing this new function, which does not conform to the classical tripartite separation of powers as conceptualized by exegetical positivism. The inquiry that underpins this research stems from fundamental questions concerning the role that judicial bodies play—and ought to play—within a democratic system. It examines the increasingly fluid distinction between interpretation and norm-creation, acknowledging that there are instances in which the existing legal framework does not provide a determinate solution. In such cases, the legal order remains incomplete, dissolving the boundaries between the creation and interpretation of norms, thus transforming the interpreter into an active participant in the process of constructing legal responses. As key findings, the study identifies: (i) the formal and informal institutional design factors that have rendered the expansion of judicial power in Brazil a globally unique phenomenon; (ii) the existence and conceptualization of judicial discretion within the legal system and its correlation with the direct application of open-ended norms; and (iii) the proposition of a methodology for the direct application of open-ended norms that is suited to the evolving functions of constitutional adjudication, thereby controlling and legitimizing the phenomenon of judicial lawmaking in order to mitigate subjectivism and prevent judicial will from superseding the Law itself.