THE JUDGE AND PROGRESS

enlightenment salvation. a critical analysis of the brazilian Supreme Court decision that turned homophobia into a crime.

Abstract

This essay addresses a critical analysis to the outcome of Brazilian Supreme Court’s judgment on ADO 26 and MI 4733, which turned homophobia into a crime. This case might be analyzed under the perspective of the judicial activism, a singular (but not exclusive) behavior observed in Constitutional Courts, and also the judicialization of politics, a phenomenon observed in several contemporary democracies, that shifts to the Judiciary Branch the gravity center of fundamental political decisions, from the finding of an omissive behavior of the Legislative and Executive Branches. Furthermore, this trial has thrown new lights on judicial discretion, an issue that produced one of the most famous debates on academic field in the contemporary jurisprudence, between Herbert Hart and Ronald Dworkin. It is possible to hold that the path adopted by the Supreme Court overpassed judiciary boundaries, harming the Constitution.