A aproximação normativa do direito brasileiro ao stare decisis da tradição anglo-americana e o risco de consolidação do caos enunciativo-decisório

Abstract

With the establishment of several and often antagonistic worldviews and ethical issues, the complexity of contemporary society has given rise to the dynamics of the permanent process of legal positivization. One can no longer identify the predominance of a particular ideology, but a simultaneous existence of different fundamentals and social values controlling the Law along with the Judiciary itself, which is the last alternative in which intersubjective differences ought to be nullified. The cognitive opening of legal systems and their own indeterminacy have resulted in the expansion of the power of the Judge, for the more complex becomes the society, the more it overwhelms positivization, making decidability irresolute. During a moment of potential crisis of Legal indeterminacy, from the second half of the twentieth century, particularly in the context of post-war constitutionalism, the "expansion of judicial power" has arisen with a view to the enlargement of the creation/complementation of judicial interpretation. Therefore, the “agenda” of juridical has become a judicial decision, phenomenon with a greater effect on both the continental and Anglo-American tradition. The turn for the application moment and the decision-making liberty has grown into a factor for convergence and reconciliation between the civil law and the common law, and the judicial law has become an instrument to tackle the dogmatic fluidity. The attribution of binding force for the judicial precedents has become widespread in Contemporaries States, even in those from continental origins, due to the threat of decisions based on "personal convictions". Having scrutinized the particularities of the incorporation of stare decisis in the continental systems, the research aims to examine the Brazilian context of “crisis of Legal indeterminacy” and the analogous improvement of judicial discretion, which, in the extreme, can foster arbitrary decisionism denying the dogmatic starting points, what is called in the research as enunciating-decisory chaos. For that purpose, as a representation of the particular logic of Brazilian judicial precedents (the logic of decision by general enunciation) that allows the manipulation of the of previous decisions and enable the judge's subjectivity (enunciatingdecisionist reasoning), the research will focus on the trial of HC 127,186/PR in the STF (Supreme Court) as well as on the survey from the CNJ (National Council of Justice) which reveals a tendency for consolidation of those enunciating decisions. After identifying the problem, the research attempts to prove the thesis that the peculiar incorporation of stare decisis, through the normative imposition, resulted in the enlargement of the jurisprudential disorder in Brazil, reaching the extreme case of the legal reasoning for general enunciation being made possible by decision-makings of non-judges.