O processo de conscientização do necessário respeito aos precedentes judiciais no Brasil

Abstract

The awareness of brazilian judges on respecting and following the judicial precedents is necessary and our aim is to highlight it. There is, in Brazil, several factors that indicates that the precedents serve a persuasive role, since their bases are the contemporary Law theory and Constitutional rules with great axiological strength. The movement that seeks to strengthen the application of precedents fights against the previous idea that the judge, as in the French Revolution, is a mere mouth that pronounces the words of Law. It is a common sense that the security for individual rights and equality are fundamental principles of a democratic state of law, but these principles seem to be worthless in front of the traditional and overly broad view of judges independency. It is as if the statement of law by the judge was unimportant and not worthy of due care. It is acceptable that the judge decides according his own conviction of Law in the case but it is given many different possibilities for appeal. The courts responsible for the uniformity of the federal law and the Constitution seems to have to perform such functions in each case, leading to an obviously overwhelmed these central bodies. However, new legislation and new judiciary decisions give us the hope of a judiciary that works together and offers the same response in the face of similar cases. We conclude that the achivement of respect for precedent depends much more of a culture than of legal dogmatics. Notwithstanding, we proposed some interpretations of this dogmatic that may contribute to the consolidation of that culture.