A doutrina do stare decisis e o sistema de precedentes judiciais no supremo tribunal federal: subsídios para uma análise crítica.

Abstract

The lack of uniformity, integrity and coherence in judicial decisions is a major problem in the Brazilian judicial system, after all it is inconceivable that judges and courts judge similar or identical cases in different ways, violating the constitutional principles of legal certainty and isonomy. In order to solve or, at least, mitigate this problem, some legislative reforms were carried out in the legal system of the country, giving binding effectiveness to some judicial decisions, inspired by the system of judicial precedents characteristic of the countries of the common law family. In this context, the Civil Procedure Code of 2015 stands out, which, in its article 927, expanded the hypotheses of binding decisions, raising a broad discussion about the (in)compatibility of these legal instruments with the national judicial system, of tradition civil law. Thus, this monograph proposes to reflect on whether the aforementioned legislative changes are adequate and sufficient to guarantee uniformity, coherence and integrity in judicial decisions and, consequently, ensure effective respect for the constitutional principles of legal certainty and isonomy. In order to do so, a detailed study was carried out on the judicial precedent, starting from a historical analysis, with the purpose of understanding the beacons that allowed its formation and development in the common law and civil law systems. In addition, judicial precedents in Brazilian law before and after the Federal Constitution of 1988 were examined. Finally, Ronald Dworkin's assumptions for understanding judicial precedents were presented and, based on these teachings, a critical analysis of five decisions handed down by the Federal Supreme Court was developed. Therefore, for the elaboration of this academic work, an extensive bibliographic review was carried out, as well as analysis of legislation, jurisprudence and case studies. Throughout the exposition, it was demonstrated that the doctrine of stare decisis did not arise in England abruptly, on the contrary, it originated from the development, which took place over hundreds of years, of the common law system. In this sense, it is unlikely that the sudden importation of this doctrine will immediately solve the problems existing in the Brazilian judicial model. Far from it, if not properly implemented, this legal theory can result in other problems, such as the weakening of legal law and the rise of theses elaborated by the Supreme Courts, based on the hierarchical authority of these bodies and not on the quality of their reasons. Certainly, the adoption of binding legal institutes can result in the uniformity of judicial decisions, however it is possible to be uniform in error. Therefore, the content of judicial decisions must be prioritized, seeking, above all, their integrity and coherence with the Brazilian legal system. Keywords: Judicial precedent. Common law. Civil law. Stare decisis. Binding decisions.