Uma proposta de significado para o efeito vinculante
This article aims to examine the criticism made against the theory of binding precedents, starting from its core: the assertion that, by the Constitution of the Federative Republic of Brazil, only the Legislative Power can edit abstract and general precepts. However, the paper examines Norberto Bobb...
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| Format: | Article |
| Language: | Portuguese |
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2019
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| Online Access: | https://dialnet.unirioja.es/servlet/oaiart?codigo=7469471 |
| Source: | Revista Brasileira de Direito, ISSN 2238-0604, Vol. 15, Nº. 2, 2019 (Ejemplar dedicado a: RBD. Mai-Ago/2019), pags. 260-280 |
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| Summary: |
This article aims to examine the criticism made against the theory of binding precedents, starting from its core: the assertion that, by the Constitution of the Federative Republic of Brazil, only the Legislative Power can edit abstract and general precepts. However, the paper examines Norberto Bobbio’s explanation of the elements of abstraction and generality, concluding that the Judiciary also has the legitimacy to emanate acts with these characteristics. Despite this conclusion, the criticism forces a closer examination of the constitutional regime of the binding effect and of which decisions from the Judiciary shall have it. In the end, the article proposes a definition for the binding effect by examining its three parts: once decided after careful analysis, a case should be treated as if it had been settled once and for all, unless it can be demonstrated that a special element requiring reconsideration. |
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