A função criadora do juiz : do implemento dos poderes judiciais ao estabelecimento de uma margem de segurança para as decisões inovatórias

Abstract

The Constitutional State of Law has assumed several responsibilities that are beyond the mere pursuit of pacification of conflicts, defense of property and circulation of wealth, fundamental questions of the traditional Liberal State. The State began to worry about such as social and collectivity interests, environmental, consumer’s, children’s, worker’s and women rights. Parallel to this major State concern, the society grew, it has increased and developed and therefore each day new and unexpected situations appear which need the State support, without, however, get an immediate response from the legal system. Thus, the Legislature failing to give the necessary and immediate support to such questions, the Judiciary Power suppletive is called to give an efficient and prompt solution, supplanting the legislating activity, creating standards and acting as that unit of Power. Nevertheless, abusive use of creative activity, which invades the playing field of another Power, may result in an imbalance in the republican principles. In order to avoid this occurrence, the Judiciary Power must be aware to certain themes of security in their creative decisions, ensuring its authority without exaggeration, equating security with the effectiveness of legal creative adjudication.