The Brazilian model of precedents : a new hybrid between civil and common law?

• Main Author: Alves Dias De Souza, Marcelo
• Format: Dissertation
• Language: English
• Published: King's College London (University of London) 2013

This thesis offers, in response to the challenges of a globalised world, a coherent systematisation of the Brazilian model of precedents as a new hybrid between civil and common law. Conceptual and broadly comparative (constantly drawing knowledge from the English common law), it presents how precedents are understood and how they operate in Brazil. This thesis systematises the concepts and establishes a consistent vocabulary for the categories of creativeness, declarativeness, persuasiveness and bindingness of precedents, which can then be comprehended by both Brazilian and English audiences. In addition, it creates a unique reference to be applied in the comparative study throughout the thesis. This thesis also analyses the practical uses of precedents in Brazil and then compares them to the English model. It discusses how judges in Brazil deal with concepts such as the ratio decidendi, the distinguishing and the overruling of precedents. As the last few decades in Brazil have seen a clear increase in the use of precedents in terms of frequency, creativity and bindingness, this thesis offers a comprehensive taxonomy of the several Brazilian binding precedents that are expected to progressively transform the Brazilian approach to precedents into an example of a hybrid model. This thesis focuses on the new and very important Supreme Court’s Binding Súmula (a category of binding precedent introduced into Brazilian law by Amendment 45 to the Federal Constitution, passed in 2004), analysing its origins, features and significance under a dual perspective that could be interesting for both common and civil law traditions. This thesis finally focuses on some of the advantages of the doctrine of stare decisis – stability, certainty of law, equality, time-saving –, as positive criteria of functionality, in order to analyse improvements in the deliverance of justice in Brazil since the adoption of a more comprehensive approach to binding precedents. The last chapter also presents and debates some strengths of the new Brazilian approach to precedents, emphasising that the Brazilian mix of civil and common law elements has proven to be a very synergic model. Identifying many of the problems of Western precedent models as well as suggesting some solutions, this thesis aims to be used as a tool for both researchers and those dealing with law reform and to contribute to the development of the theory of precedents in both civil and common law legal worlds.