DEFINING PRECEDENTS

• Main Author: Gabriel Sardenberg Cunha
• Format: Article
• Language: English
• Published: Universidade do Estado do Rio de Janeiro 2019-12-01
• Series: Revista Eletrônica de Direito Processual
• Subjects: precedent; stare decisis; definition; universalizability; operative interpretation
• Online Access: https://www.e-publicacoes.uerj.br/index.php/redp/article/view/42165/30554

It is known that precedent, as a form of justification endowed with the authority of those who pass it, invariably unfolds upon the juridical phenomenon, especially regarding legal reasoning, and serves, to a greater or lesser extent, to conform the ruling of analog future cases. Under this notion that it was once established the maxim of treat like cases alike, which in turn serves as a rational mainstay for the system commonly referred to as stare decisis. If, then, precedent’s ability to conform is a given, it remains, however, to comprehend what is exactly a precedent; what makes a past court decision be materially a precedent for future judgments. It is endeavoring to answer this question that this essay aims to define precedent so as to ultimately assert that precedent will be that decision in which, at the moment of its interpretation by the later judge, it is identified: a pretension of universalizability based on Kant’s categorical imperative’s principle of universalizability, and the occurrence of an operative interpretative exercise capable of enriching the legal rules of which positive law avails itself. With these two criteria one can identify to which decisions should be assigned the quality of precedent in order to then be made possible to systematize the model of judicial precedents established by the 2015’s Code of Civil Procedure.