Precedentes judiciais legitimação pelo procedimento

AUTOR(ES)
DATA DE PUBLICAÇÃO

2009

RESUMO

The purpose of this study is to prompt in the minds of those within the legal community a critical and pragmatic reflection upon the new perspective in which the phenomenon of precedents are perceived in the Brazilian legal system. Theres no doubt that the role played by the precedents changed substantially in the last few years. In other words the judicial precedents transformed from a condition amongst other parameters often considered to have little significance to in relation to court decisions the condition of highest relevance and many times the only parameter considered by judges when preparing and substantiating their rulings. On this note It will be demonstrated that precedents are now given a normative power beyond even the vinculatory affect being that such characteristic is actually peculiar to some of them. It is possible to notice the impact of these changes on the concept of the democratic legitimacy within judiciary branch and its role as agent responsible for the reinforcement of Democracy. Therefore this work will initially using the logico-juridico concept of precedents along with its birth and historic evolution in comparative law together the Brazilian Legal System. Moving along some conceptual notions that are crucial for the understanding of the present study will be introduced. This work will gather still a judicial political and pragmatic motive that usually propels the legislative and jurisprudential modifications leading the precedents to embody its current key position on our legal system. This scientific paper conveniently introduces a prospect portraying the overcoming of the hermeneutical separation between two branches of the Law the civil law and the common law along with the obvious adoption of the stare decisis in Brazilian law. In addition I will transcribe a few examples driven from our legal texts that can confirm my previous assertive. Moving along It will further demonstrate the new path followed by the legal hermeneutic purposing always with a democratic view to the alterations mentioned above the importance of an open interpretation of the law in which the represented participation of our citizens can be considered more than a potestative right but also an obligation for the court system. Furthermore other alternatives will be presented they can be applied to the judicial cases that can be directly affected by precedents with normative power in other words precedents with erga omnes efficiency allowing these cases to be examined thought the due process of law. Moreover this work will attempt to demonstrate the importance of the amicus curiaes influence and their role in this new judicial scenery of construction of precedents having the responsibility and power to guarantee its legitimacy and compliance to all democratic principles and also ensure the flexibility of the system thus avoiding a dogmatic hardening and a the laws withdrawal from reality

ASSUNTO(S)

precedentes judiciais devido processo legal stare decisis efeito vinculante amicus curiae vinculatory effect direito stare decisis interpretação aberta do direito open interpretation of the law amicus curiae precedents due process of law

ACESSO AO ARTIGO

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