“UNCONSTITUTIONAL STATE OF AFFAIRS”, JUDICIAL ACTIVISM AND TRANSFORMATIVE CONSTITUTIONALISM

The expansion of the judicialization of politics in the Global South’s democracies has brought with it a significant development, the spread of “structural reform litigation”. These court cases involve the continuous and widespread violation of social rights of less favored groups, whose solution requires the creation of new remedies that differ from the ordinary ones. Such injunctions of reform of government policy and institutions are complex and open the possibility of a dialogical approach, which can legitimate this non-judicial role. One of these novelties is the Unconstitutional State of Affairs. It was developed by the Colombian Constitutional Court, in the context of the transformative constitutionalism that takes place in that country, and has recently been brought to the Brazilian jurisprudence. Thus, what we intend to discuss in this paper is the perspective of a dialogical judicial activism in Brazil, on behalf of the social transformation, from the trial of ADPF 347/2015.