| dc.description.abstract | Whether in the legal tradition of common law or civil law, the rule of law is based on two great values: legal certainty and equality. Both the statutory law and the precedents are essential instruments for the implementation of any State that deems itself to be of law. For reasons due to the influence of French Revolution dogmas, based upon the supremacy of the legislator and a strict doctrine of separation of powers, many civil law tradition States relegated judicial rulings to second place. The statutory law, product of the sovereign will of people, was the only and authentic creative source of law. It was up to judges only to reveal the unique and pre-existing meaning contained in the statutory law, not innovating in the legal order. The utopia of the sufficiency of the statutory law to promote the principles of legal certainty and equality prevailed. The doctrine of stare decisis was almost rejected. Brazil was not different. Traditionally, judicial decisions received less importance than statutory law. The dominant view was that the judges should obey only the statutory law, being free to judge once they justified their decisions. The case law did not obliged judges and courts, even when settled by the Supreme Court. The 1988 Constitution changed this scenario. The judicial decisions gradually gained a prominent role, especially those made by the Brazilian Federal Supreme Court and the Superior Court of Justice. The doctrine, the legislation and the courts gradually began to admit the judicial decisions as a creative source of law, recognizing their ability to transcend the specific case. The Civil Procedure Code of 2015 represents the peak of the upward trend of judicial decisions. The new Codex established, like never before, the doctrine of binding precedents in the legal system and reconciled the Brazilian Federal Supreme Court and the Superior Court of Justice role with the Supreme Courts. The CPC/2015 also sought to handle in a better way with the issues brought from litigation burst in the country, such as the lack of effectiveness of judicial decisions. For this purpose, it arranged a micro-system of repetitive cases solution, empowering the Brazilian Federal Supreme Court and the Superior Court of Justice precedents, delivered in extraordinary and special appeals, with meaningful binding effect. The CPC/2015 instituted a specific procedure, consisting of five stages, aiming to the issue a binding precedent, through a solemn proclamation of a ratio decidendi applicable to other pending and future cases dealing with the same repetitive legal issue. | |
