The Judicialization of Politics in Brazil and the Decision-Making Behavior of the Magistrates: Analysis from the Perspective of Historical and Dialectical Materialism of Gramsci

Abstract

This essay object is the study of the decisional behavior of the Brazilian lower court magistrates. It considers the scenario of what is conventionally called the judicialization of politics, by which the Judiciary power from the second half of the 20th Century has started to face subjects alluding not only to the strict legality of administrative acts, as well as to whether public policies are aligned with the programmatic precepts of the constitutional rules. From these new tasks assigned to the Judiciary, it is investigated the behavior which is assumed by the magistrates. The hypothesis is that, paradoxically, they continue to operate in a restrained way, as they do not take advantage of the completeness of interpretive perspectives that are opened from this new institutional configuration. The understanding of what occurs with the judges, however, remained enlarged and it was made based on the perspective of historical materialism, revealing that the judiciary can be considered as a micro-hegemonic environment. It is inserted in an expanded conception of State, in which unfolds a diurnal fight between organic intellectuals linked to the ruling classes and those who defend the ideals of the subaltern classes, aiming the conception and the dissemination of a legal common sense, repositioning, even the current notion of what would be judicial activism.