Judicial activism and the (re)definition of the limits of judicial freedom: a study from a constitutional perspective of conduct equated to the crime of racism in the judgments MI 4733 and ADO 26

Abstract

This study is part of the contemporary debate concerning the constitutional limits of judicial  activism in the Brazilian criminal sphere, critically examining the judgments rendered in Writ of  Mandamus No. 4,733 and Direct Action of Unconstitutionality by Omission No. 26, which  redefined, in jurisprudential terms, criminal protection against discriminatory conduct. The  research problem is as follows: does the Supreme Federal Court's action in equating homophobia  and transphobia to the crime of racism in the face of legislative omission constitute a legitimate  constitutional implementation or does it represent an overstepping of the limits of criminal  jurisdiction? The overall objective of this work is to analyze, in light of the Federal Constitution,  the limits of judicial action in criminal matters, especially in the face of the tension between the  effectiveness of fundamental rights and the structural guarantees of the Democratic Rule of Law,  notably the principle of strict legality and the principle of legality. This article is primarily based  on the theoretical contributions of Luís Roberto Barroso (2025), Alexandre de Moraes (2025), and  Luigi Ferrajoli (2014), whose approaches allow for an understanding of, respectively, the  phenomenon of judicial activism, the limits of constitutional jurisdiction, and the centrality of penal  guarantees. To this end, a qualitative methodology with a deductive approach is adopted, through bibliographic research in constitutional and penal doctrine, combined with normative and  jurisprudential analysis of precedents from the Supreme Federal Court. The study argues that,  although judicial intervention has provided significant protection to vulnerable groups, its  normative effects have generated tension with penal legality and the separation of powers, by  bringing the judicial function closer to a materially legislative action. In conclusion, the proposed  hypothesis is confirmed, insofar as the interpretative expansion in penal matters compromises legal  certainty and institutional balance, highlighting the need for rigorous criteria of judicial self restraint. This work is justified by its theoretical and practical relevance, as it contributes to improving the debate on the limits of constitutional criminal jurisdiction and the preservation of  fundamental guarantees in a democratic state governed by the rule of law.