A TEORIA DA DERROTABILIDADE DAS NORMAS JURÍDICAS E OS SEUS INFLUXOS NO SISTEMA BRASILEIRO DE PRECEDENTES JUDICIAIS

Abstract

This article proposes to analyze the possibility of the legal defeseability theory being used by the law operator to not apply a judicial precedent with binding effectiveness. To implement this analysis, the concept of judicial precedent is presented, its nuances in the Brazilian legal system as opposed to the common law, the graduation of its binding force, its approximation to the legal norm, as well as its application in concrete cases. Based on these introductory concepts, we went on to evaluate the approximation of judicial precedent to the essence of legal norms, especially in terms of generality and abstraction. Once the normative character was verified, the limits to be observed in the formation of judicial precedents were analyzed, especially in light of the understanding that judicial activity is creative of the legal norm, using as a guide for this investigation judgments of the Federal Supreme Court that, in concentrated control of constitutionality, invalidated precedents of the jurisprudence of the Superior Labor Court. A counterpoint was also established between the precedents and the legitimacy of the legislative reaction, considering the ambivalence between self-restraint and the Supreme Court's counter-majoritarian function. The next step was to evaluate how precedents fit into the traditional normative species - rules and principles - on which occasion the concepts presented by national and foreign doctrines were identified, in conjunction with the particularities of the ratio decidendi and the objective of standardizing jurisprudence. Thus, having understood mandatory precedents as rules drawn up by the Judiciary, the study went on to tackle the issue from the point of view of the theory of the defeasibility of legal norms, presenting a brief historical contextualization of its origin, its concept, the understanding of the doctrine and its dialogue with the subject matter. Also, from the perspective of the normative character of precedent, we inspected the systems applicable to distinguishing and overruling, defining each of these techniques in the context of overruling rules. It was observed that the legal theses consolidated in the judicial precedents are incapable of exhausting all possibilities related to questions of law, similar to what happens with the laws elaborated by the parliament. It was concluded that the defeseability theory can be exceptionally used to justify the non-observance of a thesis established in a binding precedent, especially when demonstrating the implied exception, without compromising the stability, integrity and coherence of jurisprudence