Precedente judicial obrigatório: uma análise da crescente influência do common law no direito brasileiro

Abstract

The Brazilian legal system increasingly approaches to a system based on the respect for judicial precedents, also known as common law, originated in England. Traditionally, Brazil adopted a civil law system, of French origin, which means that there were extensive laws with the function to regulate all human relations. As years went by, however, it was demonstrated the inability of the Legislative to predict all situations, which gave the judges very wide powers, because they had a large margin to interpret laws without having the obligation to respect their own precedents or even the ones originated from the Supreme Court. Because of this situation, common law gained power, which encouraged the raising of various juridical institutes. This paper intends to analysis the origins of both legal systems, common law and civil law, such as investigate how a system based on the respect of judicial precedents works, making a brief comparison between local and foreign laws. At the end, this work studied the juridical institutes that can be considered a consequence of the increasing influence of the common law on the Brazilian legal system, giving special importance, for its relevance, to the abstraction of the diffuse constitutionality control.