JUDICIAL ACTIVISM AND LEGAL CREATION: Is there the law of the legislator and the law of the judge?

Abstract

This article aims to address the issue of judicial activism contextualized from the analysis of recent cases of great repercussion in Brazil, which suggest the occurrence of activism. To do so, it defines judicial activism; brings a brief understanding of the institutes of extraordinary appeal (RE) and general repercussion (RG); carries out the analysis of the appeal on the right of transsexuals to be treated according to gender identity in view of the controversy surrounding public restrooms; and the Direct Action of Unconstitutionality by Omission (ADO) 26 added to the Writ of Injunction (MI) 4733, in which the STF recognized the National Congress' failure to enact a law that made acts of homophobia and transphobia a crime. The method used in carrying out this research was the dialectical-argumentative method, operationalized by extensive bibliographical and documentary research carried out in articles, doctrines and jurisprudential understandings relevant to the theme addressed. It was concluded that magistrates can also exercise an active position, innovating the legal system, provided that their behavior is essential in the specific case. It is imperative that the judge also be able to innovate the legal system when this posture is indispensable, especially when the matter under discussion is fundamental to the interest of society and legislative protection is insufficient, non-existent or unfair.