Abstract
This article analyzes the instrumentalization of law for the purpose of promoting social emancipation. It hypothesizes whether the leading role attributed to the Judiciary in the Democratic State of Law at the turn of the last century to the 21st century fulfills the promises of modernity based on the theory of the social contract and driven by the Enlightenment ideals to make effective the rights of freedom and social rights of the Constitution. To this end, first, legal positivism is presented, in search of recognition of subjects and equal participation; second, the historical bases of the constitutions are established, to confirm the metamorphosis of law and the model of jurisdictional control through the main and incidental channels; and third, to show judicial activism, mapping the decisions of the Supreme Court. The conclusion is about the importance of the Judiciary in the effectiveness of positive and negative rights. The article was guided by the hypothetical-deductive method and was based on books, scientific articles, legislation and jurisprudence.
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