RATIO DECIDENTE VERSUS TESE JURÍDICA: ADEQUAÇÃO E ACERTAMENTO DA QUESTÃO JURÍDICA NO MODELO BRASILEIRO DE PRECEDENTES

Abstract

This article examines the relationship between ratio decidendi and tese jurídica within the Brazilian system of precedents, especially after the enactment of the 2015 Code of Civil Procedure. Although Brazilian procedural reform drew inspiration from common law, the national model does not reproduce its methods. Instead, it develops an autonomous technique aligned with the civil law tradition and with the predominantly deductive mode of legal reasoning that characterizes Brazilian adjudication. The central argument advanced is that the tese jurídica—an abstract, objective, and normatively oriented statement formulated through specific judicial procedures such as repetitive appeals, general repercussion, and incidents of assumption of competence—constitutes a more precise and functional mechanism for legal uniformity than the fact-dependent reconstruction of ratio decidendi typical of common law precedents. By separating the legal issue from the factual peculiarities of the paradigm case, the Brazilian model enhances interpretive clarity, increases systemic coherence, and facilitates consistent application by courts. The article further proposes that ratio decidendi plays a dual role in this context: first, as the justificatory foundation underlying the formation of the thesis; and second, as the operative premise in future adjudication, where the thesis itself functions as the ratio. This duality allows the system to combine analytical rigor with procedural economy. Ultimately, the study concludes that legal theses represent the most adequate framework for ensuring normative accuracy, legal certainty, and effective judicial governance in Brazil, while avoiding the conceptual and practical difficulties associated with an uncritical transplantation of common law techniques.