Os precedentes de observância formalmente obrigatória como instrumento de mitigação da discricionariedade e de superação stare (in)decisis

• Autor(a) principal: Silva, Luiza Sousa da
• Data de Publicação: 2019
• Tipo de documento: Trabalho de conclusão de curso
• Idioma: por
• Título da fonte: Repositório do Centro Universitário Braz Cubas
• Texto Completo: https://repositorio.cruzeirodosul.edu.br/handle/123456789/1263
• topic: Discricionariedade; Precedente; Interpretação; Hermenêutica; 6.01.00.00-1 Direito

The process of applying the law is complex and, as is known, the language is imprecise, the texts are vague, require interpretation, and the understanding of the norm is limited by the individual's historicity. For these and other reasons, it was seen that positivism was found as an attempt to provide stability and legal security from the attempt to codified anticipation of possible factual situations. In the absence of an express legal provision, the legal solution was delegated to the enforcer of the law, who discretionly decided the issue. However, the discretion, inherited from the positivist doctrine and valued in the systems of Roman-Germanic tradition, which stand by the observance of the law, has no constitutional support, as it allows the interpreter to adopt extra-legal guidelines to decide the case in an undeniably solipsist manner. In fact, it was noted that the acceptance of discretion ended up generating a major problem that is currently being glimpsed: the dispersion of jurisprudence, which, in turn, gives rise to the resentful feeling of legal insecurity, a phenomenon also observed by the doctrine. For this reason, attentive to this demand, the legislator, through the 2015 Code of Civil Procedure, started to value judicial precedents, considering them as means of giving uniformity and stability to judicial decisions. Thus, the objective was to analyze bibliographically the contribution of celebrated legislative innovations in comment with overcoming the problem of legal insecurity. However, it was realized that, in truth, the mere expansion of binding mechanisms, despite being so celebrated by an important portion of scholars, in addition to not resolving the legal security impasse, can bring more problems than solutions. As a result of this understanding, it was noted that, although the precedents of mandatory observance do not help the highlighted social claim, the legal system has the means to contribute to the issue, especially given the duty of coherence, integrity and stability enshrined in the Code of Conduct. Civil Procedure 2015, regardless of the institution of binding decision-making standards, not very effective in the Brazilian reality.