Judicial activism or judicial review: distinction criteria and comparative analysis: Brazil, Argentina, Mexico, Germany

Abstract

This article presents the results of a research project, whose central objective was to study judicial actvism,
its concept, and to scientifically assess the performance of the Brazilian judiciary, in order to verify the
validity of the criticism of judicial activism attributed to it recurrently. The judiciary controls the acts and
omissions of the legislative and executive branches through judicial review. However, when the judiciary
exceeds the limits of its competence (or jurisdiction), it unduly interferes in the competence of the political
powers and practices judicial activism. In order to scientifically assess whether judicial performance in the
concrete case is about regular judicial review or undue judicial activism, it is essential to analyze the
institutional acts of the judiciary, that is, the judicial decisions, and the arguments provided by this power
in the justification of its acts. Since judicial decisions are discursive acts, criteria for their assessment were
sought in the discourse theory developed by Jürgen Habermas and the theory of legal argumentation
elaborated by Robert Alexy.