O distinguishing no modelo de precedentes normativos formalmente vinculantes

Abstract

The Civil Procedure Code of 2015 redimensioned "jurisprudential law", proposing a model of formally binding normative precedents aimed to face the issue of precedents from the imperative of rationality. The present study, in this context, seeks to differentiate the paradigm inaugurated by the Code of 2015, demonstrating its accommodation to the post positivist achievements and, thus, proposes that, if adequately dogmatized, the model has the ability to remedy the main dysfunctions bequeathed by the past validity. Contrary to what some objections suggest, the model does not intend to stagnate the Law, since, besides recommending the clear identification of the ratio decidendi, it ensures means of promotion of departures that guarantee autonomous treatment whenever the case recommends, in spite of apparent similarity between instant-case and precedent-case. Under the requirement of analytical and substantial grounding, the dogmatic nucleus (art. 926, 927 and 489, §1o) offers the distinguishing not only as a means of defending stability, isonomy and legal certainty to the jurisdiction, but as a contribution to the development and oxygenation of the Law itself, since the proper identification of factual differences refines and concretizes the determinant foundations originally formed. In this particular, the research decomposes the technique into "declarative distinguishing", as method and result of comparison between cases and "distinguishing constitutive", an argumentative process through which reasoning by counter analogies develops. It is necessary, however, to define criteria to avoid subversion of the institute. From the analysis of cases already brought to the Judiciary Branch and a re-reading of part of the related doctrine, the research seeks to touch on parameters of legitimacy of application and distinction, arguing that illegitimate distinction should be avoided to the maximum, under feather of erosion of the forged model. In the end, after a survey of the main considerations on the subject - above all, regarding the problem of material facts -, the study suggests a dogmatic proposition to tangentially apply and distinguish precedents, trying to interrelate the phases (formation and interpretation), in order to achieve the balance between fidelity to the original meaning of the precedent and the flexibilization of the norm in the chain of later resignifications inherent in the discursive nature of Law.