Division of Powers – Between the Judge and the Legislator

Abstract

The current text is drawn from observation of the consequence brought by the Constitution of 1988, which, despite having sponsored the admission of brazilian society in the paradigm of the constitutional State, resulted in an excessive and increasing search for the judiciary system, by the citizens and the public officers responsible for the defense of collective and diffuse rights. It aims to visualize, trought the theory of Division of Powers, the relations between the judge and the law, in a way to avoid that him, during the creation of law, exceeds the imposed limits. This text turns to an special view about the limits that the judge finds in the situations where the constituent power imposed reservation of law, which are mostly justified by the safeguarding of fundamental rights, notably the rigths of freedom.