Boca da lei ou boca dos tribunais? A (in)compatibilidade do sistema de precedentes brasileiros com a teoria dos precedentes judiciais anglo-americano

Abstract

The new Code of Civil Procedure, filed under the dictates of Law 13.105 of 2015, brought various innovations to the Brazilian civil process, both within the scope of procedural principles and procedural rules. Among these innovations, the new CPC consolidated a tendency that the legislator and the Brazilian legal system already outlined as a new area of ​​action in the country's law: the system of precedents. Through this, it was attempted to create a new source of law in Brazilian law, through judicial decisions, whether they come from Superior Courts or local courts, according to specific hypotheses brought by both the Constitution and the new Code of Civil Procedure . The present work intends to study, however, under what perspective the Brazilian precedent system was idealized, in a comparative analysis with the guiding principles and originators of the Theory of Judicial Precedents, consolidated by Anglo-American law. After a brief exposition of the genesis of the conception of precedents as a source of law, through its historical and theoretical bases, an attempt will be made to evaluate whether there is incompatibility between both institutes, by means of an evolutionary study of precedents in Brazilian law until its consolidation with CPC / 15. Finally, through doctrinal, jurisprudential and statistical researches, an analysis will be made of the practical effects that originate from the conclusion of the previous evaluation, in order to study the impact of the system of precedents for the Brazilian legal system