A precedentalização do direito brasileiro: uma análise sobre a importação de institutos do common law à luz das capacidades institucionais do Poder Judiciário

Abstract

This work focuses on examining the criteria that the current legislature would have used when importing, into the 2015 Civil Procedure Code project, institutes typical of the common law legal tradition, notably those that sublimate the culture of precedents as constructive element of Law. Thus, specifically, it is sought in Senate Bill no. 166/10 the criteria that would have created a Brazilian system of precedents by guiding the uniformity of jurisprudence, in addition to imposing duties, compliance, on judges and courts to keep it intact and stable. These imports, which come to carry the strange neologism of commonlization, receive all kinds of criticism from legal doctrine, especially from those who, with an eye on historical criteria, see that certain institutional categories from outside do not suit Brazil, born under the sign of civil law. Under bibliographical research in doctrinal works and in various documents issued by public institutions (Brazilian Judiciary and Legislature), the work follows a path that initially established the legal traditions that shade that of the so-called Western World. Thus, starting from the conception of Law in Classical Greece and Ancient Rome, we arrive at the legal traditions of common law and civil law. Having compared the traditions, the work's issues are examined: the imports of common law types and their controversies to Brazil. Under this influence, despite the criticism about the mens legislatoris, the socalled will of the legislator, the criteria for importation are sought in PLS 166/10. Thoroughly scrutinized (preliminary project and justifications, committee reports, considerations in public hearings, debates in sessions with the Senate and the countless suggestions from civil society and entities linked to the Law) we will seek to find the criteria that satisfactorily justify why of imports, something so disruptive in convolving a paradigmatic change in the national legal matrix, and therefore worthy of detailed, careful and dispassionate reflection. Furthermore, once the imports have been made, the research addresses the possibility that this represents the overcoming of Legal Positivism, in addition to other consequences that communicate the Right to Politics, namely judicial activism, legislative reactions to this phenomenon and dialogical theories between the Powers.