Precedentes judiciais através do espelho: o direito como aquilo que os tribunais dizem que é

Abstract

Based on a critical analysis of judicial precedents, the aim of this paper is to investigate the recent trend in the judicial community to argue that our legal system is going through a kind of “commonlization”. Thus, it is sought, in the first place, to show that what we have been calling "precedents" in no way resembles the theory of precedents typical of Anglo-Saxon law. Secondly, by questioning the causes and the context in which the so-called judicial "precedents" have been inserted, it is perceived that their importation caters more to the acclaimed procedural celerity than to the duties of coherence and integrity that make up jurisprudence’s judicial certainty. Thus, there is an appropriation of the meaning of what is exactly judicial precedents by the theoretical common sense of the jurists. Finally, in order to make the application / interpretation of judicial precedents in Brazil more constitutional and democratic, it is necessary to situate the current philosophical paradigm in which we find ourselves in order to highlight that text and norm are related based on an ontological distinction. This leads us to conclude that judicial precedents can not and should not behave like ready-made judicial responses to future cases, since the norm to be applied depends on the facticity that composes it.