The Importance of Precedents in Brazilian Judicial Processes
Introduction
This article aims to analyze the nature of judicial precedents, their significance in Brazilian law, and their application and use in judicial processes. This analysis is relevant because, in theory, precedents are used as a behavioral mechanism by courts and often serve as a basis and foundation for actions yet to be judged. In the civil law system, the use of precedents, though still emerging, aims to standardize and provide legal certainty to citizens. Therefore, it is crucial for legal practitioners to learn how to use them appropriately.
The concept of judicial precedent is a fundamental element in various legal systems worldwide, playing a crucial role in the application and evolution of law. The formation of judicial precedents involves a detailed process that ensures consistency and predictability in court decisions. This paper explores the nature of precedents, their importance, the process of formation, and their implications for legal practice.
The Nature of Judicial Precedents
The 2015 Code of Civil Procedure significantly strengthened the treatment of precedents in Brazilian courts. Article 926 established the duty for courts to standardize their jurisprudence, utilizing mechanisms such as summaries, normative statements, and binding decisions. Specifically, Article 927 determines that decisions made by higher courts in concrete cases have binding effects on future decisions in similar situations.
Examples of the importance of precedents include Constitutional Amendment No. 45/2001, which introduced Article 103-A into the Federal Constitution of 1988, addressing binding summaries. Additionally, Articles 543-A, 543-B, and 543-C of the 1973 Code of Civil Procedure (CPC/1973) introduced techniques for judging repetitive special and extraordinary appeals, with general repercussion analysis for extraordinary appeals, later refined in CPC/2015. These provisions reaffirm the importance of uniformity in judgments.
The relevance of precedents varies according to the legal system adopted by each country. In common law systems, such as those in the United States and England, precedents are fundamental for building the law and are considered binding on lower courts. In civil law systems, such as Brazil and France, precedents have a persuasive character, serving as a reference for judges but not obliging them to follow them strictly.
Judicial precedents play several essential roles in the Brazilian legal system. They ensure legal certainty by standardizing jurisprudence, contributing to the predictability of judicial decisions and ensuring that similar cases are treated equally. Additionally, they promote procedural efficiency by avoiding the re-examination of issues already settled by higher courts, thus expediting case proceedings. They also consolidate legal principles as tools for realizing the principles enshrined in the Federal Constitution and other laws, applying them to concrete cases.
The nature of precedents can be understood through two fundamental principles: stare decisis and ratio decidendi. The principle of stare decisis dictates that courts should follow previous decisions when judging similar cases, promoting stability and continuity in the law. The ratio decidendi refers to the central reasoning or foundation of a judicial decision, which should be followed in future judgments, giving the precedent its binding force.
To distinguish precedents from summaries, it is important to note that precedents arise from judicial decisions in specific cases and have binding effects only for similar cases. On the other hand, summaries are developed by higher courts themselves, synthesizing the majority understanding on a particular issue and applying to all cases that fall within the addressed topic, regardless of factual similarity.
Treatment of Precedents in Judicial Actions
Before analyzing the treatment of judicial precedents in actions, it is crucial to understand how they are formed as tools of the courts, as outlined by the 2015 Code of Civil Procedure. The formation of a judicial precedent involves several stages:
- Initial Decision: A court issues a decision in a specific case, based on the interpretation of laws and analysis of the facts presented.
- Ratio Decidendi: The rationale for the decision, known as ratio decidendi, is the part that actually contributes to the precedent. This reasoning serves as a mandatory or persuasive reference for future decisions in similar cases.
- Publication and Dissemination: The decision is published and disseminated within the legal community. Official publications and digital repositories are common means of accessing decisions.
- Reaffirmation and Application: When lower courts apply this decision in similar cases, the precedent is strengthened. Consistent application solidifies the decision as a guide for future judgments.
The main advantage of precedents is the promotion of consistency and predictability in the legal system. By following previous decisions, courts ensure that similar cases are treated uniformly, reinforcing trust in the justice system.
While precedents promote stability, they also need to be flexible to allow for the evolution of the law. In situations where society evolves or new interpretations become necessary, higher courts may review and modify previous precedents. This ensures that the law keeps pace with social and technological changes.
Ideally, the formation of precedents should be a natural process, emerging from the courts themselves when identifying which decisions, due to their arguments, could have an impact and provide binding force for resolving future controversies. However, what is observed in the Brazilian legal system is a more static formation of precedents, with legislative indications of decisions that will attain this status. This is confirmed when analyzing the system of special and extraordinary repetitive appeals and the new incident of resolution of repetitive demands. This mechanism allows, in cases of multiple actions with identical legal issues, a second-degree court to establish a precedent that must be followed by lower instances. The aim is to avoid conflicting decisions and provide greater speed and efficiency in the judgment of similar cases.
Another important mechanism is the Extraordinary Appeal with General Repercussion. This appeal, which can be filed with the Supreme Federal Court (STF), aims to resolve issues of social, economic, political, or legal relevance that transcend the interests of the parties involved. When the STF recognizes general repercussion, the decision made in the appeal must be applied to all similar cases in progress.
Unlike common law, where the precedent is the binding decision whose status depends on its use to resolve future controversies, in Brazil, the decision is already born as a precedent, depending on the choice established by the Legislative Power.
The binding and persuasive effects of judicial precedents compel the lower courts to follow the same ratio decidendi, while persuasive precedents serve as references but can be deviated from with adequate reasoning. Binding efficacy is related to the obligation for certain judicial decisions to be followed by judges and courts. In Brazil, this type of efficacy is most clearly observed in decisions from high courts, such as the STF and the Superior Court of Justice (STJ).
Binding summaries, for example, have the power to bind not only other courts but also the direct and indirect public administration. They are established when there are repeated judgments of similar cases, aiming to standardize constitutional interpretation and avoid divergent decisions. On the other hand, decisions in concentrated constitutional review assess the constitutionality of laws and normative acts and have binding effects on other judiciary bodies and public administration.
Persuasive efficacy, on the other hand, pertains to the influence that certain judicial decisions can exert on future decisions without obligating them to follow the same understanding. Decisions with persuasive efficacy serve as references or authoritative arguments, persuading but not binding. Examples include precedents from Regional Courts and First Instance Judges, as well as decisions from the STJ and STF in non-binding cases.
Conclusion
The introduction and consolidation of the system of binding and persuasive precedents reflect the evolution of Brazilian law towards a more predictable and systematic framework. The adoption of these concepts aims not only at judicial efficiency but also at justice and equality before the law.
Indeed, if the idea of a jurisprudential law is now a reality, it cannot persist by applying precedents mechanically without considering the concrete situation at hand. Hermeneutic exercise is fundamental, or else we risk adopting a Brazilian precedent model that merely repeats interpretative problems that the law itself already presents.
The confrontation of the legal thesis transformed into a precedent with the concrete cases that may be affected by it is the starting point for ensuring that the entire system of precedents delivers the expected results.
In summary, judicial precedents are essential for the stability and predictability of the Brazilian legal system. Their correct application and interpretation ensure equal treatment before the law and promote citizens' confidence in the justice system. As the use of precedents consolidates in Brazil, it is essential to continue improving mechanisms and practices that ensure their effectiveness, contributing to a fairer and more efficient judiciary.
References
- ARAUJO, Juliana Furtado Costa. O Precedente no novo CPC e suas implicações tributárias.
- SANTOS, Evaristo Aragão. Em torno do conceito e da formação do precedente judicial. In Direito Jurisprudencial. São Paulo: Revista dos Tribunais, 2012, p. 148.
- MARINONI, Luiz Guilherme. Precedentes Obrigatórios. 5ª ed. – São Paulo: Editora Revista dos Tribunais, 2016.
- Enciclopédia Jurídica da PUCSP disponível em: https://enciclopediajuridica.pucsp.br/verbete/455/edicao-2/precedente-judicial.
- Técnicas Para Formação De Precedentes Judiciais No Direito Processual Civil Brasileiro disponível em: https://www.teses.usp.br/teses/disponiveis/2/2137/tde-15102020-194616/publico/9173111_Dissertacao_Parcial.pdf.
- Sistema Brasileiro De Precedentes Judiciais Obrigatórios E Os Deveres Institucionais Dos Tribunais disponível em: https://www.mprj.mp.br/documents/20184/1255811/Fredie_Didier_Jr.pdf.