A participação dos julgadores vencidos na deliberação das teses jurídicas: sua importância na construção do Sistema Brasileiro de Precedentes

Abstract

This study aims to demonstrate the relevance of legal theses made at the end of trials capable to made judicial precedents in the Brazilian system of precedents and verify if the dissenting judges must participate in the deliberation. In this sense, the study will show that judicial decisions are source of law, therefore, binding precedents are necessary to achieve the objectives of legal certain. This essay intends to define the relevant elements of judicial precedents, the ratio decidendi and obter dictum, and the difficulty to recognize them, including in the legal system of common law. Considering that precedents are made in trials by collegiate courts, this essay will show that recognition of ratio and obter is more difficult, because of the methods of deliberation in the decisions made by many judges. Afterwards, this essay will define the legal theses and show its criticisms in doctrine manners, to demonstrate that this legal institute makes the aim to legal certainty easier, reducing the difficulties in the application of binding precedents. At the end, this study will analyze the judgments of Supreme Cort in extraordinary appeals since the legal effects of the procedural code and verify if the dissenting judges participate of the deliberation of legal theses and propose that the dissenting judge must participate in the process to make the legal theses.