Manipulative verdict

the (im) possibility of positive legislation by the Supreme

Abstract

Brazil, as a Democratic State of Law, has the tripartite function of federal powers, as assigned by the Federal Constitution: Executive, in its administrative role, Legislative as creator of legal norms, and the Judiciary, which has the primary function of applying the existing law to specific cases. There is no way for the legislator to foresee all the legal situations that exist in today's society, which is constantly changing. Thats why it is necessary for the Judiciary to interpret the pre-existing rules, in order to achieve the best solution for that specific case within the Constitutional limits.  In the light of this, questions arise about the effect of these decisions on the Brazilian legal system and if in fact it is possible for the Judiciary to create regulations without violating the Constitution. Thus the purpose of this article is to carry out an analysis of the effects caused by legal rulings of a manipulative nature, as well as the possibility of the Judiciary acting as a positive legislator. Manipulative rulings are the result of broader interpretation of the existing laws by the Supreme Court. After several doctrines compelled, it can be concluded that this type of decision basically causes two effects: additive and substitute. In the first effect, the Judiciary indicates an applicable rule instead of the unconstitutional one, while in the second it creates a new rule to replace the inapplicable one. There is disagreement in the doctrine regarding the possibility of the Judiciary taking the role of a positive legislator. Nonetheless, it is certain that the judiciary has been creating regulations with the aim of resolving conflicts that are not contemplated by the current positive legislation, or that are not in conformity with the Supreme Law. The methodology applied in this research was based on deductive approach, bibliographic techniques, jurisprudential and documentary research, as well as doctrinal reviews, the analysis of Brazilian legislation and jurisprudence about the subject.