EXPANDING THE REVISIBILITY OF THE MIS APPLICATION OF PRECEDENTS FOR THE INTEGRITY OF BRAZILIAN LAW: BY PRAGMATICALLY BINDING NORMATIVE PRECEDENTS
Name: GUILHERME VIEIRA VICTOR DE SOUZA
Publication date: 19/09/2023
Examining board:
Name |
Role |
|---|---|
| TAREK MOYSES MOUSSALLEM | Advisor |
Summary: The formal incorporation of precedents to Brazilian legal system marks the reencounter of thelegal traditions that formed it since the Republic origins, making it part civil law, part commonlaw. The 2015 Civil Procedural Code, a Code developed by jurisprudence and welcomed bylegislators, redeem common law’s influence over Brazilian Law and promises an uniform,stable, integrate and coherent body of case law, be it either for the well development of lawitself and to rationalize access to judiciary service. Despite the Code’s seven-year in effect,litigation rates seam stable though. Brazilian legal culture doesn’t look ready to deal withprecedential institutes, keeps applying excerpts of case law as if it were statutes, worsening thegap between judiciary practice and the foundation of its legal and democratic legitimacy. Andsupreme courts resist in reviewing the improper application of precedents by ordinary courts,transforming the maxim treating like cases alike an inconsequential codified promise. Thisattitude does not allow the consolidation of stare decisis, which in Brazil, historically, isstillborn. New Code’s precedents may be normative and formally binding, but they are notpragmatically normative nor pragmatically binding yet. By analyzing the binding precedentstheory under the combined lights of the linguistic turn, logical-semantical constructivism’snorm theory, the theory of source of law as its enunciation, and law as integrity theory, thispaper aims to encourages the Brazilian precedential culture development thru changing thelegal actors’ structure of incentives. Thru the proposition of broad reviewability by supremecourts of the bad application of their precedents by ordinary civil courts, Law and Economicselements are used to demonstrate that give judiciary practice a standard differ from defensivecase law is not only a legal duty, but something that can be put in effect.
Keywords: Binding precedents. Improper application. Ordinary courts. Broad reviewability.Supreme courts
