SUPREME COURT AND THE ENLIGHTENMENT FUNCTION OF THE COURTS: THE ISSUE OF REASONABLE MORAL DISAGREEMENTS IN THE POLITICAL ARENA.

Abstract

This article aims to discuss the nature of the Enlightenment function of the courts, developed by Minister Luís Roberto Barroso, and how it relates to Judicial Activism, a hermeneutic phenomenon that, in the judicial decision, the magistrate, in the absence of the current legality, decides according to its ideology or sense of justice. The method used in this article is deductive, in addition to a doctrinal and jurisprudential research on the subject, demonstrating, both in theory and in practice, the practical effects of judicial activism. It describes what constitutes an institutional backlash, what is a political arena and what are reasonable moral disagreements and why they should be resolved in the political field and not in the procedural field. The article's conclusion demonstrates that this Enlightenment function causes legal uncertainty, destabilizing the separation of powers, undermining the principle of people's self-determination, characteristic of a democracy.