A CRITICAL ANALYSIS OF THE COUNTER-MAJORITARIAN, REPRESENTATIVE AND ENLIGHTENMENT FUNCTIONS OF THE FEDERAL SUPREME COURT IN LIGHT OF THE DOCTRINE OF EFECTTIVENESS

Abstract

The article intends to approach the counter-majoritarian, representative and enlightenment functions of the Supreme Court referred to by Minister Barroso's doctrine of effectiveness in securing an alleged potential for interference by the Supreme Court (STF) in the most varied questions of politics. The jurisdictional function places itself in a position to mediate the fulfillment of constitutional promises, tensioning the relationship between the functions of the State. The aim is to investigate the changes that occurred in the constitutional jurisdiction after the middle of the 20th century, as well as the overcoming or not of legal positivism by post-positivism, and whether it can be accepted as a jusphilosophical paradigm of the new Constitutional Law, capable of supporting judicialization politics, judicial activism, counter-majoritarian, representative and enlightenment functions of the STF. After demonstrating the overcoming of the Liberal State model by the Post-War Constitutional, it is understood that there was no overcoming of legal positivism by post-positivism. There is, in fact, a mistaken understanding of the phenomena of the judicialization of politics and judicial activism, which never intended to confer on the Judiciary functions other than counter-majoritarian, but which cannot be exercised based on moral arguments, simply because the idea of pretending to correct the legal system is incompatible with the legal system and the idea of democracy. The research will use the bibliographic, legislative and jurisprudential review on the subject, drawing on works from the Theory of Law, Political Philosophy and contemporary Constitutional Law, envisioning a dialectical analysis of the STF's performance in relation to the democratic system.