Binding precedents
Binding Precedents: between methodological difficulties (system) and the search for optimisation of the Judiciary
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This paper deals with the impact of the inclusion of binding precedents in the Brazilian legal system. The methodology used consists of a literature review and analysis of the wording of some binding precedents. First, it discusses the constant influence of the common law legal system in Brazil. It then explains the similarities and, above all, the differences between judicial precedents and binding precedents. After that, it analyses Constitutional Amendment No. 45, which included binding precedents in Brazilian constitutionalism, the historical context in which it occurred, and its main obje...
This paper deals with the impact of the inclusion of binding precedents in the Brazilian legal system. The methodology used consists of a literature review and analysis of the wording of some binding precedents. First, it discusses the constant influence of the common law legal system in Brazil. It then explains the similarities and, above all, the differences between judicial precedents and binding precedents. After that, it analyses Constitutional Amendment No. 45, which included binding precedents in Brazilian constitutionalism, the historical context in which it occurred, and its main objectives. It then addresses how the ministers of the Federal Supreme Court are drafting the statements of binding precedents, contrary to the provisions of the Federal Constitution, acting constantly in an activist manner. Next, it addresses which requirements in Article 103-A of the Constitution are being violated, through an analysis of binding precedent statements that have already been issued.
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