Name: GABRIEL SARDENBERG CUNHA

Publication date: 22/04/2020
Advisor:

Name	Role
CLAUDIO PENEDO MADUREIRA	Advisor *

Examining board:

Name	Role
CLAUDIO PENEDO MADUREIRA	Advisor *
HERMES ZANETI JUNIOR	Internal Examiner *
SAMUEL MEIRA BRASIL JR	External Examiner *

Summary: Aiming for more rationality in the jurisdictional activity and aligned with the recent discussions in Legal Theory and Philosophy, the 2015 Code of Civil Procedure dogmatically structured a model of judicial precedents with binding authority formalized in statutory law. To that end, it availed itself, first, of its article 926, which institutionalizes the courts’ duty of uniformizing their understandings and keeping them stable, sound and coherent; second, of its article 927, when listing a series of decision- making contexts and techniques for externalizing decisions whose results should be formally observed in the judicial hierarchy; and, mainly, third, of its article 489, § 1, item VI, which defines as ill-founded any judicial decision that fails to follow precedent raised by the party without first demonstrating being a case of distinguishing or overruling. All the same, this last article’s wording, while mentioning precedent, also alludes to jurisprudence. The juxtaposition of these two terms, then, allows one to assume that, in a legal-positive perspective, precedent and jurisprudence would be unlike and leads to question whether this supposed distinction is sustained when defining the logical- legal concepts of one and the other. Given this, it is reasonable to discuss the scientific hypothesis that the legislative program is proposing a rule WHEREby the decisions that form the category of this so-called jurisprudence would have binding authority similar to that dispensed, in law, to precedent. This summarizes the objective of this research, which, guided by the deductive method, aims to demonstrate that this is precisely the case.
Keywords:Precedent;Jurisprudence;Decision;Binding authority;Rationality

Access to document