Binding precedents and three-dimensional theory of right: An analysis of fundamental rights how legal values

Abstract

The STF binding precedents (SV’s), instituted by Constitutional Amendment 45/2004, impact in application of the Constitution and innovate the institutional position of the STF in Brazil. From the question of how the legal value of fundamental rights appears in the set of binding precedents of the STF, the main objective of this research is to analyze and interpret the collection of 57 SV’s. The basis will be the three-dimensional theory of Right, which presents the legal phenomenon as fact, value and rule, and among the values some fundamental principles will be chosen as a filter for the SV’s analysis. Using the analytical and hermeneutic method focused on the text of the precedentes, tables will be drawn up to visualize the records and relations between their contents and the facts, values and rules explicitly quantifiable and implicitly perceptible in a qualitative-quantitative research exercise. As a result, is expected a clearer understanding of how the SV’s express and translate to the legal system the fundamental rights as legal values, which are at the axiological core of the Constitution, fundamental to the understanding of the presence of values like equality, freedom, legal security, and human dignity in the STF’s SVs. So, it is concluded that, despite the important explicit presence of the valorative element in the SV’s, there was the predominance of implicit aspect, resulting in the necessity of interpretation by the judiciary and, thus, making more complex the effective assurance of fundamental rights.