Full text
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| Author(s): |
Adriana de Moraes Vojvodic
Total Authors: 1
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| Document type: | Doctoral Thesis |
| Press: | São Paulo. |
| Institution: | Universidade de São Paulo (USP). Faculdade de Direito (FD/SBD) |
| Defense date: | 2012-06-01 |
| Examining board members: |
Luís Virgílio Afonso da Silva;
Luís Roberto Barroso;
Jean Paul Cabral Veiga da Rocha;
Carlos Ari Vieira Sundfeld;
Marcos Paulo Verissimo
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| Advisor: | Luís Virgílio Afonso da Silva |
| Abstract | |
Precedents are past decisions, which are used as a guide for new decisions. Within the juridical scope, the use of precedents not only assures security and predictability, by limiting the amount of judges leeway, but also helps grant equality. Despite having been traditionally given relative importance when studied in civil law systems, precedents frequently appear in the opinions of court decisions, as in the Brazilian legal system, among many others. In order to determine what the role played by the precedents is in the statements of arguments which introduce the decisions made by the Brazilian Supreme Court (Supremo Tribunal Federal - STF), this research focused on the analysis of the use of precedents in the decisions which involve the conflict or the restriction of fundamental rights. Considering the distinction between the two present functions of the STF, since it acts both as Supreme Court and as Constitutional Court, expected behaviours concerning the use of precedents have been identified for each of such functions. The analysis of the former court decisions was conducted in two stages. First, a set of decisions made by the STF, all related to the subject matter of fundamental rights, was selected and the network of precedents on which they were based was reconstructed. Such research method allows for a clear visualisation of the precedents, the connections between decisions and the patterns of citation of precedents. In sequence, the role played by the reference to precedents in the judges reasoning was analysed, so that the relevance given to the former decisions could be evaluated. The series of analyses accomplished led to the perception that the Court credits a specific function to the precedents, as a result of a positivist view of such tool. Thus, the use of precedents is characterised by a jurisprudence which reiterates solutions, rather than setting argumentative standards to guide judicial action in difficult cases. The consolidation of such positivist view of the precedents is deeply related to the continuously growing necessity to achieve efficiency in the judicial action, which is solved by the use of mechanisms that allow for the standardisation of jurisprudence. So, on the one hand, the role assigned to the precedents provides an important solution for the STF action. On the other hand, though, it leaves blanks in the action of the STF as a Constitutional Court, which should be responsible for the development of Law. (AU) | |
| FAPESP's process: | 09/17594-5 - Precedents in the Brazilian Supreme Court: a study about the use of the precedent in the colision of fundamental rights |
| Grantee: | Adriana de Moraes Vojvodic |
| Support Opportunities: | Scholarships in Brazil - Doctorate (Direct) |