Case study of habeas corpus no. 82.424-2/RS

Constitutional judicial activism in light of foreign jurisprudence

Abstract

This paper presents a case study of habeas corpus no. 82.424-2/RS, judged by the Supreme Federal Court on August 17, 2003, which considered that the publication of the book "Jewish or German Holocaust? Behind the scenes of the lie of the century" constituted the crime of racism, using, among its grounds, German jurisprudence. From this perspective, it questions whether the use of foreign jurisprudence contributes to promoting the effectiveness of Brazilian judicial activism, using the aforementioned mandamus as an example. To answer this question, the work is divided into three topics. The first will discuss judicial activism from the perspective of a new constitutional interpreter, indicating the reasons that lead scholars to classify it or not in this way. Beyond this point, it will be verified that domestic and foreign jurisprudence are ways of producing judicial activism. Although national judicial decisions are also instruments of this new interpretation, they are not the focus of this research; therefore, emphasis will be placed on the compilation of foreign judgments. The third section will present a concrete case to demonstrate the reasons why it is believed that the effectiveness of Brazilian judicial activism can be promoted through the use of foreign jurisprudence. Regarding theoretical contributions, the thoughts of André Ramos Tavares and Cass Sunstein were used as a basis. As for methodology, a case study was used to illustrate the argument that is intended to be reached regarding the effectiveness of Brazilian judicial activism, using repeated decisions of foreign courts as a parameter.