Mandado de injunção: uma análise a partir do princípio de separação dos poderes

Abstract

This paper presents an analysis of the Writ of Injunction against the principle of separation of powers. Through a theoretical study, we tried to show the whole evolution of the thinking of the Brazilian Supreme Court since the creation of this important constitutional remedy. The way this process has been decided, with the application of concretist theory, might hurt the principle of Separation of Powers. Moreover, it appears that the principle has no more rigid division like the time was envisioned by Montesquieu. What you see is the softening of the rigidity principle for their suitability to the Federal Constitution of 1988. The Constitution proposes that must be effected so that the Writ of Injunction provides citizens access to rights already put in the Magna Carta. For this, it is accepted that the judiciary also perform a legislative function with characteristics in case of failure of the Legislature.