A Força vinculante da tradição judicial no Processo Civil Brasileiro como exercício de argumentação e hermenêutica na Jurisdição Constitucional

Abstract

The Brazilian Civil Procedure has found in the arguments of isonomy and juridical security its greater flags for the consolidation of a juridical model inclined to the stability and the predictability of the jurisdictional behavior. Faced with this objective, the new Code of Civil Procedure has described a significant number of provisions that, in some way, put force on the endowment of binding effects to some types of court proceedings. Legal security and isonomy are values essentially related to the Democratic State of Law. The expressions of law with attention to judicial precedents are marks of the new archetype desired for the procedural practice. Resigned by these findings, there remains the inquiry into the theory of knowledge that routinely subordinates interpreters of our times, even though this philosophical stance has already lost legitimacy throughout history, especially with each new totalitarian onslaught. The adoption of decisions made in precedent does not remove from the judge its argumentative burden, which must, in order to do so, identify the factual foundations of the past case as a true hermeneutic exercise. The judicial precedent can not only represent a mechanized and automatic method of producing decisions. Therefore, it is necessary to identify some problems in the use of precedents to extract the greatest possible rationality and effectiveness of the procedural system. Thus, it is necessary to locate the contributions to the constitutional hermeneutics that allow the jurist to move efficiently between the dogmatics of the postulates and their apprehension from the facts. The understanding of law is phenomenological and, thus, attempts at scientific neutrality are lost. Coherence and integrity of the legal system become the pillars of the interpretive submission of the interpreter to the postulates of the judicial tradition. The constitutional reading is the necessary sieve so that the practice of the right of precedents is not transformed into a breath to voluntarism. The procedural legal system, in this way, must preserve the mechanisms capable of making possible distinguishing or overruling of precedents. The preservation of appeals for argumentation with this content should be encouraged.