A decolonial insight about the judicial activism
DOI:
https://doi.org/10.29293/rdfg.v7i02.313Keywords:
Modern Law. Neoconstitucionalism. New Latin-American Constitutionalism. Judicial Activism. Human RightsAbstract
This article was writen from a bibliographic research, considering the legal-sociological aspect, to ponder on judicial activism as a colonized legal mentality. The starting question was: is there a decolonial alternative to judicial activism? Arguments were collected about how this conduct, despite having produced gains in effectiveness for social rights, ends up being a reaffirmation of the coloniality of legal knowledge. To reach this conclusion, the first arguments were on the birth of the modern State and it´s law; after that arguments on the neoconstitucional adjustments and how, in both phases, their adoption in Latin America was merely symbolic. The use of activism has been identified as a new form of juspositivist schemes with a hierarchical structure with processes that seek to identify the best argument. As an alternative, the New Constitutionalism paradigm is presented, which advocates conflict resolution through consensual mediation and dialogue between cultures and people without prior consensus, especially linguistic consensus. While civil society organizations in Western countries opted for the formation of coalitions to mobilize the judiciary and thereby stimulate the production of law, in other Latin American societies the same marginalized social groups claimed to stop being marginalized until they managed to implement a new constitutional paradigm.
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Copyright (c) 2021 Vladmir Pinto Coelho Feijó, Thiago Filipe Martins Bicalho
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