Levando os precedentes judiciais a sério: a necessidade de instituição da tese da resposta correta na jurisdição processual brasileira e a (i)legitimidade da utilização de provimentos judiciais vinculantes

Abstract

The search for a diligent and predictable judicial protection that is able to grant a more effective judiciary and fairer judgments aiming to avoid both legal decisionisms and the subjective paradigm is not a new-found matter concerning civil lawsuit. The necessity for standardized jurisprudence and maintenance of its stability, integrity and coherence has been made explicit in many sections of the present Brazilian Code of Civil Procedure. "Court precedents"started to be used as a broad expression to designate judicial statements that manifestly intend not only to serve as a parameter to, but also to bond, to a greater or lesser extent, subsequent legal judgments. At first, such issue may seem fully adequate when it comes to the efficiency of court proceedings, the resolution of mass and repetitive litigation, and legal certainty principle. However, it is important to note that while the predictability of judgments by using binding court precedents may encourage the grant of fundamental rights - the main component of our legal system - it may also overlap the concrete case by judging it abstractly or neutrally as in terms of Legal Positivism. As a result of that, how can judge-made law or court precedents contribute to finding correct answers in law, regarding the support of both fair trial and a constitutional jurisdiction? In pursuance of the answer to the referred question this paper tries to investigate the (i)legitimacy and to evidence the required caution in the use of such binding procedures. In order to achieve the proposed goals of this present work, the author chose to use the phenomenological hermeneutic approach combined with monographic and historical proceduring methods. Doctrinal research was also used. The conclusion of the research developed along this paper is that the employment of such tool can only be effective and fair when the concrete case is taken into account and when the principles of interpretation, intersubjective reflection and hermeneutics are considered.