Os precedentes judiciais como instrumento de legitimidade e efetividade dos direitos fundamentais

Abstract

This dissertation sought to analyze the correlation between judicial precedents, legitimacy, and effectiveness of fundamental rights, starting from an investigation into the civil law and common law legal systems, and understanding their historical roots and evolution. Throughout the study, it was demonstrated how civil law, structured on the codification and primacy of the law, was approaching common law, whose main characteristic is the progressive construction of law through case law. Brazilian law, influenced by this movement, began to adopt binding precedents, especially after the entry into force of the 2015 Code of Civil Procedure, aiming at the standardization of case law and legal certainty. During the research, the criteria for the existence of a legal system in the doctrine of Hans Kelsen, Niklas Luhmann, and Joseph Raz were presented. The dissertation continued by analyzing judicial precedents as mechanisms that confer stability and predictability to the legal system, allowing past decisions to guide future cases and promote greater coherence to the legal system. The study then went on to examine the evolution of constitutional control in Brazil, addressing how the national system was influenced by the common law model and contemporary constitutionalism. This led to the observation that decisions of the Higher Courts have a binding effect, in diffuse control, consolidating the Court's role as a protagonist in defining constitutional interpretation. This movement was driven by the need to reduce the burden on the Judiciary and to provide greater stability to legal relations, avoiding contradictory decisions between the courts. Continuing the research, it was demonstrated that, although precedents are essential instruments for legal certainty, their application in Brazil still faces practical challenges. Judges, often overwhelmed by the excessive volume of cases, end up applying precedents mechanically, without an in-depth analysis of the legal foundations of the ratio decidendi. In addition, it was found that the higher courts themselves, in some situations, diverge in the interpretation of precedents, generating legal uncertainty. Finally, it was shown that the appropriate use of binding precedents can function as a mechanism to control judicial activism, as it defines decision-making standards and reduces arbitrariness in the interpretation of norms. The dissertation concluded by stating that precedents play a crucial role in the legitimization of the Judiciary, promoting the predictability of decisions, strengthening equality among those under its jurisdiction and reaffirming the commitment of the Democratic State of Law to the stability and coherence of the legal system.