A (I)LEGITIMIDADE DO SUPREMO TRIBUNAL FEDERAL PARA DECIDIR SOBRE A DESCRIMINALIZAÇÃO DO USO RECREATIVO DE DROGAS

Abstract

It is true that the phenomenon of the judicialization of public policies has taken on large proportions, as the Federal Supreme Court (STF) has been called upon to decide numerous fundamental issues that are decisive in the lives of citizens. However, the expansion of judicialization has caused reactions from the legislative branch and created tension between the judiciary and the legislature. This research aims to analyze the legitimacy of the STF to decide on the (in)constitutionality of criminalizing drug possession for recreational use in the context of judicial review in light of the theory of separation of powers. To this end, it discusses the theories of separation of powers by Montesquieu and Rousseau, addresses the power of veto granted by the Federalists in the Constitution of the United States of America, and analyzes the judiciary's role, particularly with the advent of judicial review, which is a subject of debate among constitutional scholars. To achieve these objectives, a hypothetical-deductive approach was undertaken, utilizing both primary and secondary sources supported by content analysis. The research demonstrated that the STF's decision is inconsistent with the conceptions of Montesquieu and Rousseau.