Interpretação dos precedentes judiciais: o problema da definição da ratio decidendi no sistema de precedentes brasileiro

Abstract

This monograph aims to study one of the main issues in the theory of precedents: the delimitation of the ratio decidendi of judicial precedents. More precisely, it aims to find an appropriate method to guide this activity. It is therefore considered that a technically correct interpretation of precedents is of fundamental importance for the functionality of the Brazilian system of binding precedents. Chapter 2 will establish a dialogue with common law, in order to extract from it some fundamental notions of the doctrine of precedents. Chapter 3 will briefly address the historical path of the presence of precedent and case law in the national legal discourse, culminating in the enactment of the 2015 Code of Civil Procedure. Chapter 4 will delve deeper into Neil MacCormick's theory, in which the concept, now adopted, of ratio decidendi as a sufficient standard for resolving a question of law will be clarified, as well as the related concept of distinguishing. The aim will be to develop some latent consequences of MacCormick's theory, combining it with certain insights from procedural doctrine and other theoretical conceptions of Law. In the end, a typical model of a precedent-setting judicial decision will be arrived at, whose elements demarcate the context – or the whole – from which the ratio decidendi arises, and which, for this very reason, configure the guidelines for its delimitation. It will then be demonstrated that such guidelines serve, at the same time, as criteria for comparison between cases, and therefore as a guide for the accomplishment of distinguishing. The work follows a deductive approach, and is supported by bibliographic and documentary research.