O descumprimento do mandamento constitucional ao poder legislativo para regulamentar direitos fundamentais e suas consequências para a democracia

Abstract

Throughout the Federal Constitution of 1988, an extensive list of foreseen fundamental rights is observed. Some opted for directing their regularization of those most appropriate to the legislator in a constituted way. However, it should be noted that, even with this commandment, the numbers are limited in their constitutional initiative in the absence of regular justice. With this legislative search scenario, which is not infrequently used as a strategy, the Judiciary has gained prominence in the solution for these issues, justified by its main function of the Magna Carta. This proactive judicial action raises questions about how this action can reflect on the principle of separation of Powers and the precepts of a Democratic State of Law. This gap, this quality, places a virtue in the performance of the constitutional and democratic Powers, followed by the avocation of the front in the review of fundamental rights.