Sistema de precedentes judiciais e sua compatibilidade com a democratização da justiça na formação da decisão judicial

Abstract

The article has the objective to investigate what is the role of jurisprudence and the judicial criativismo in the administration of justice by the courts and if this system is conducive to democratization of justice. The legal sociology, hermeneutics as the process of judicial decision, has evolved significantly in the context of our case, but the Brazilian law was deeply influenced by the civil law, where the codified law prevails in our legal system . However, the Brazilian procedural law has come under heavy influence of Anglo -Saxon law , while sociological reflection on social factual situations , establishing a hybrid system in which both the codified law as the judicial interpretation are primary sources , as has been happening with the binding precedents , among other examples . Indeed, the decisions of the higher courts , specifically the Supreme Court and Superior Court , are key, as documentary sources of epistemological reference for consideration and resolution of disputes brought to the courts , giving the sociological hermeneutics a central role in our jurisprudence with a significant effect on the legal system . For these reasons the research starts from the premise that the case law and precedents of higher courts are ways to streamline the law and allowing the update feature of the legal system, and ensure the predictability of decisions and the consequent legal certainty. However , the thesis aims to study , through empirical research , to what extent the very precedent of sociological force , have effect as normative source broadening the scope of procedural law to new dimensions of democratic legitimacy , since the editing process , change or even overcoming a precedent is carried out with the weak participation of citizens in the production of the ruling. The study whose bias analysis verify to what extent the strength of traditional jurisprudence , contributes to the formation of a democratic deficit and opening it to new dimensions of legitimacy , when excluding the participation of the parties involved in the formation of precedent and its stability the application by the judiciary.