As Premissas Fáticas e o Precedente Trabalhista: da Razão Eclética ao Virtual Law, a Concretude Objetiva segundo a Teoria do Fato Constitucional

Abstract

The proposed thesis involves the analysis of precedents in labor matters, through a systematic approach that, starting from the concept of integrity, unity and coherence of the legal system and the precedent itself, examines the institutes related to the theory of judicial precedents and their origin and evolution in comparative law, as well as the characteristics that involved its incorporation into the national order. Using traditional concepts involving the elements of formation and application of judicial precedents, it seeks to combine the objective element and the subjective load that is inherent to them, presenting an approach that will use concepts of the so-called "Justice 4.0”, turning to the social purpose of the process and the democratic legitimacy of the precedent. Starting from such concepts and considering the peculiarities of material and procedural labor law, in its genesis, evolution and systematic framework, using elements of the theory of legal argumentation, and through the analysis of concrete labor cases under the guise of the virtual law, the aim is to present, from the concept of objective concreteness, a theory based on the constitutional fact with a central element for measuring the integrity of precedent, through principles based on clarity, isonomy, social acceptance according to the dialogic function of precedents, social repercussion of the decisions, and in the factual-constitutional identity of the ratio decidendi. It is proposed, therefore, the recognition of the factual premise, from the perspective of the constitutional theme, as a relevant presupposition to be considered in the construction and application of decisions with binding content in the labor law field.