O Fututo do Constitucionalismo - Caderno de Resumos [2014][l]

The conception of judicial activism in Frederick Schauer’s
formalism and a critique
Rodolfo de Assis Ferreira
Especialista em Direito Tributário. Graduado em Direito. Professor do
Curso de Direito da FIC/Doctum Caratinga-MG – Brasil.
Email: rodolfoassisferreira@gmail.com
Judicial activism is a phenomenon widely debated in the Philosophy
of Law, Theory of Law and Constitutional Law in the current
times. Normally the treatment of activism is always displayed in
a evaluative conception among other possible considerations, treating
it either as something to be permitted or prohibited, or either
as something good or bad. It can be said, however, that despite the
activism being treated in such approach, there is a lack of clarity or
ambiguity about what activism is about. Allied to this difficulty of
treatment there are several conceptions of how judges should treat
the content of legal texts, and among these, we have focused on the
formalism of Frederick Schauer, who defends, in most situations of
judgment, a model of respect to the authority of the rules even when
they do not say what we want. In other words, the author defends the
maintenance of the consequence determined by the rules in a particular
case even when the text of the rules conflict with the purposes
that justify them. After these considerations, the aim of this paper is
to present a description of what would be judicial activism in Frederick
Schauer’s formalist methodology and reflect critically about him.
Through some readings of Schauer’s theory, we can say that to him,
judicial activism would be characterized as the prevalence of rule’s
purpose and justification at the expense of their literal content, when
applying the law. And in Schauer’s view, rules work as generalizations
of certain situations that generate some consequence, if activated,
generalizations that have some justifications or purposes, but that
have authority independently of it. There would be situations where