ATIVISMO JUDICIAL DIALÓGICO E OS DESAFIOS DA APLICAÇÃO DO ESTADO DE COISAS INCONSTITUCIONAL NO BRASIL

Abstract

The present research work is done around the Colombian theory of the Unconstitutional State of Things, imported in Brazil by the Federal Supreme Court, which is based on the confrontation by the judiciary of issues involving massive and perennial violations of fundamental rights. The link between this theory and dialogical judicial activism rests on the fact that issues involving diffuse, collective and homogeneous individual rights must be addressed with the participation of the three powers of the republic in order to allow all these sectors to assume their responsibilities to society. The problem, therefore, is based on the inertia of the Public Power in solving structural problems that are perpetuated over time and that are eventually brought to the attention of the Judiciary. The Brazilian constitutional model, in which there is provision that the State must guarantee fundamental rights to all citizens, despite being a broad and generic concept, guarantees individuals the prerogative of charging the Government for its effectiveness. However, to accomplish the research was used the deductive method, bibliographical research and national and foreign doctrines. The challenges faced in applying the unconstitutional State of Things theory, even with the active and dialogical participation of the judiciary, face many barriers in view of the difficulty in maintaining dialogue between the powers. We tried to start the approach within the constitutional principles, as well as in the panorama of the discussions about the possibility of adoption of the theory of the Unconstitutional State of Things in Brazil, its scope and the management that can be done within the Executive, Legislative and Judiciary regarding the enforcement of fundamental rights.