Os precedentes e a viabilidade de sua aplicação no ordenamento processual brasileiro

Abstract

The paper aims to make a brief historical review of civil law and common law, with emphasis on stare decisis, its evolutionary aspects and theoretical analysis of the role of the precedent institute in the Brazilian legal system, from its earliest influences on constitutional law to its great recognition, this occurring within the law 13.105 of March 16, 2015, the current Code of Civil Procedure. Following the brief historical analysis of the traditions, we will conceptualize the precedent institute and highlight the peculiarities of its use in current Brazilian law, listing and substantiating its positive aspects and justifying its application in the face of the main arguments against its use. Finally, clarification and justification, according to the current Code of Civil Procedure, will be made of the two devices of overruling and distinguishing. After this historical and functional analysis, it is concluded that the two aforementioned removal devices help the use of the precedents, giving dynamism to the device, which makes its positive application in the Brazilian legal system.