Jurisprudência defensiva: da identificação do problema à sua resolução

Abstract

The objective of this study is to research the origin, the causes and effects of the "Defensive Jurisprudence", legal technique emerged in the XXI century, that, instead of bringing improvements and enhancements to processualistic (notably civil), brought nothing more that damage the procedural parties – and ultimately, society as a whole. Deals with the Jurisprudence Defensive as a set of acts, actions or own the judiciary behaviors that once applied in fact, contain a number of limitations to the constitutionally guaranteed procedural rights, from access to justice and non liquet to judicial economy and judicial review, through due process of law and motivation of judicial decisions. The structuring of this work also presents propositional character as it is intended to indicate the ways in which the manifestations of that Defensive Jurisprudence can be mitigated or – at best – extinct, with the scope to ensure perfect display and presentation of constitutional guarantees process.