Introduction

Legal certainty is a fundamental principle of the Rule of Law, ensuring predictability, stability, and consistency in judicial decisions.In Brazil, the role of judicial precedents has become increasingly important in guaranteeing legal certainty, especially after the 2015 Civil Procedure Code reform, which strengthened the mandatory observance of precedents.

Legal Certainty

Legal certainty can be defined as the confidence individuals have in the stability and predictability of legal norms and the actions of public authorities. This principle is essential to ensure that citizens can foresee the legal consequences of their actions and plan their activities based on stable norms and consistent judicial decisions.

  • Predictability: Predictable judicial decisions allow citizens and businesses to adjust their behaviors according to the expected application of the law.
  • Stability: Stable norms and decisions prevent abrupt changes that could cause insecurity and uncertainty in legal relationships.
  • Consistency: Consistent judicial decisions ensure that similar cases are treated similarly, respecting the principle of equality.

Judicial Precedents in Brazil

Judicial precedents are decisions made by courts that serve as binding references for the resolution of future similar cases. In Brazil, the use of precedents was significantly reinforced by the 2015 Civil Procedure Code (CPC), which introduced the mandatory observance of precedents established by higher courts.

  • Relevant Articles of the 2015 CPC:
  • Article 926: Establishes that courts must standardize their jurisprudence and maintain it stable, integral, and coherent.
  • Article 927: States that judges and courts will observe the precedents established in decisions by the Federal Supreme Court (STF), Superior Court of Justice (STJ), and other superior courts.

Types of Precedents in Brazil

  1. Binding Precedents: Issued by the STF, they are binding on all judicial bodies and public administration, both direct and indirect.
  2. General Repercussion: STF decisions that, by recognizing the relevance of a constitutional issue, bind lower courts to follow the established understanding.
  3. Repetitive Appeals: Judgments of special or extraordinary repetitive appeals by the STJ and STF, which establish legal theses applicable to similar cases.
  4. Incidents of Resolution of Repetitive Demands (IRDR): Aim to resolve legal issues that recur in multiple cases, establishing binding precedents.

Importance of Precedents for Legal Certainty

  • Uniform Jurisprudence: Promotes uniformity in the application of the law, preventing contradictory decisions and ensuring equal treatment.
  • Reduction of Litigation: Discourages the filing of frivolous lawsuits by clearly establishing prevailing understandings.
  • Judicial Efficiency: Facilitates procedural handling and reduces judgment time by allowing lower court judges to directly apply higher court precedents.

Challenges and Criticisms

  • Excessive Rigidity: The mandatory observance of precedents can be seen as a limitation on judicial discretion and the ability of judges to adapt their decisions to the specifics of each case.
  • Evolution of Law: The need to update and adapt precedents to social, economic, and technological changes, ensuring that the law keeps pace with societal developments.

Contradictions in the Brazilian System: Supreme Court and Precedents

One of the critical issues in the Brazilian legal system is when the Federal Supreme Court (STF) does not adhere to its own precedents or those established by its plenary. This inconsistency can undermine legal certainty and the principle of isonomy. Here are some examples and analyses of such contradictions:

  1. Decisions on Political Rights: The STF has sometimes issued rulings that deviate from its established precedents on political rights and eligibility criteria for political office. For instance, decisions regarding the application of the Clean Slate Law (Lei da Ficha Limpa) have varied, creating uncertainty about the law’s consistent application.
  2. Criminal Law Precedents: In criminal law, the STF’s approach to interpreting the constitutionality of certain procedural norms has not always been consistent. For example, the court’s stance on the execution of sentences after second-instance convictions has fluctuated, affecting numerous cases and legal strategies.
  3. Tax Law: The STF has also faced criticism for inconsistent rulings in tax law, where the interpretation of tax exemptions and benefits has varied, leading to uncertainty for taxpayers and legal practitioners.

Impact of Inconsistent Precedents

  • Legal Uncertainty: When the STF does not follow its own precedents, it creates legal uncertainty, as lower courts and legal practitioners cannot reliably predict the outcome of similar cases.
  • Erosion of Trust: Inconsistent adherence to precedents can erode public trust in the judiciary, as it appears arbitrary and capricious.
  • Increased Litigation: Legal uncertainty can lead to an increase in litigation, as parties may be more likely to contest issues in court, hoping for a favorable but unpredictable outcome.

Conclusion

Judicial precedents play a crucial role in promoting legal certainty in Brazil. The 2015 CPC reform strengthened the application of precedents, contributing to the stability, predictability, and consistency of judicial decisions. However, the system faces significant challenges when the Supreme Court does not adhere to its own precedents. Addressing these inconsistencies is essential to ensure that the precedent system effectively serves the interests of justice in an ever-changing context.

Author: Fábio Medina Osório

 

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