Os precedentes judiciais e o consenso sobreposto de John Rawls

Abstract

The validity of the Brazilian 2015 Civil Procedure Code (Law No. 13,105/2015) reorders the way of operating brazilian civil procedural law, bringing a transformation to the procedural system, namely: instituting a normative legal precedents model formally binding, which is the elementary point of the present study. In fact, article 927 of CPC/2015 lists the statements and decisions that constitute judicial provisions of mandatory and binding observance to all the judicial bodies of the country. The binding force of a precedent is given by its reasoning, since the motivation of each judicial decision contains a speech aimed at the specific case under examination and a speech for the legal system aiming at social stability. In this context, this study aims to assess, through the idea of overlapping consensus formulated by John Rawls, whether the judicial precedents fulfill the claim to social stability sought by the Civil Procedure Code. In this sense, this investigation aims to assess the possibility of rationally controlling the reasoning of decisions by submitting the precedent to John Rawls' idea of overlapping consensus, since, according to this author, a decision cannot be legitimated just because it was issued by a competent authority, but also because this decision is in harmony with the system as a whole and with the principles chosen by that society