A normatividade do precedente judicial e sua interferência para a atividade jurisdicional

Abstract

The present research aims to analyze whether the judicial precedent is a skillful tool to bind the operators of the law, as well as what interferences that this instrument is capable of causing in judicial practice. With this, reflections were carried out on the need for adequate application of judicial precedents as established by Brazilian law. It also aims to understand what changes are necessary for this procedural tool to be used more effectively in the current context of Brazilian law. Within this context, the question that is intended to be pursued and resolved through this research is: What are the interferences of the judicial precedent referred to in the Brazilian Civil Procedure Code, under the normative perspective, in the judicial activity? To answer this question, the present research was based on the bibliographic review on the subject, based on the Brazilian legal literature, in addition to the analysis of empirical research that offers relevant data to the subject and news about breaches of understandings of the Superior Courts. In this context, it was found that Brazilian Law has been undergoing gradual changes, giving the impression that it is moving towards the adoption of the Common Law system. Although there is an approximation, the current characteristics of Brazilian law prevent this from happening in fact. It is possible to affirm that the judicial precedent does not remove the free conviction from the magistrates, it only inserts norms that restrict the possible interpretations of the norms. Within the application of precedent, there is sometimes room for interpretation. It was attested that the enactment of the Civil Procedure Code did not decrease the duration of the processes, on the contrary, this time has been increasing. It was also found that from the judicial precedent with binding force it is possible to extract two legal norms, one general and abstract, the other individual and concrete. The individual and concrete norm and the general and abstract one. With this, it was possible to confirm the hypothesis raised that the judicial precedent with binding force constitutes a legal norm capable of binding the magistrate in his decisions so that the decision-making must consider the precedent that deals with a similar case, whether to apply it or to drive it away. However, it was attested that this judgment methodology, as a rule, has not been effectively practiced, so that the legal practice does not coincide with what is prescribed in the must-be, requiring a cultural and methodological adequacy of the procedural activity, mainly in relation to the discussion, processing, judgment and filing of appeals.