Name: NAUANI SCHADES BENEVIDES
Publication date: 14/06/2019
Advisor:
Name |
Role |
|---|---|
| GEOVANY CARDOSO JEVEAUX | Advisor * |
Examining board:
| Name |
Role |
|---|---|
| GEOVANY CARDOSO JEVEAUX | Advisor * |
| HERMES ZANETI JUNIOR | Internal Examiner * |
| MARCELO ABELHA RODRIGUES | Internal Examiner * |
Summary: The Brazilian legal system has been gradually giving greater importance to judicial
precedents. Notwithstanding this fact, there were no major theoretical concerns
regarding the way of dealing with precedents, and its use is ruled, albeit unconsciously,
by the theoretical common sense historically established in the country: the normativist
paradigm typical of legislative law. In fact, the theoretical development regarding
specifically this subject in Brazil, mainly as a result of the advent of the Code of Civil
Procedure of 2015, is mostly based on concepts that are characteristic of a legislative
law or is based on the simple importation of the Anglo-Saxon tradition`s institutes. It is
in this context that the national doctrine defends the importation of the concept of ratio
decidendi as adequate to the use of the brazilian model of precedent, which would be
sufficient to overcome the failed idea of precedent as a general and abstract statement
like the brazilian súmula. In this sense, the present research aims to analyze the
applicability of techniques for the determination of the precedents ratio decidendi. For
this, it examines the historic of valorization of judicial precedents in Brazilian law, the
national doctrinal thoughts on the subject and how they understand it and the theories
of the main exponents on ratio decidendi of common law. Once this exposition has
been made, adopting the theoretical framework of Philosophical Hermeneutics
conceiving Law as integrity in a systemic paradigm, each of theories and their
respective techniques, is analyzed critically, evaluating its compatibility with
contemporary constitutionalism. Given the insufficiency of techniques for determining
the binding element of the judicial precedent, it is proposed to use the precedent from
its hermeneutic force, which varies according to formal and material elements. The
research was developed through a qualitative approach, through the use of historical,
hermeneutical, argumentative and dogmatic methods, and is bound to the research
line "Justice, means of defense and challenging judicial decisions" of the Master
Program in Procedural Law of the Universidade Federal do Espírito Santo.
Key words: binding decisions. Precedents. Bindingness. Theory of precedent. Ratio
decidendi. Stare decisis. Art. 927 of CCP/15.
