Os precedentes judiciais como forma de superação da crise de tempestividade na prestação jurisdicional brasileira: em busca da razoável duração do processo

Abstract

This study aims to demonstrate the relevance of judicial precedents to overcome the timing crisis in adjudication, by which the Brazilian Judiciary goes by. Therefore, the legal traditions of civil law and common law are briefly analyzed, with greater focus on the latter, in order to demonstrate the approach that occurs between such legal families, and that there are no barriers to the use of judicial precedents by affiliated countries to the Roman-Germanic tradition. It is also studied the theory of judicial precedents, being defended a hermeneutic and dialectical conception of these institutions, as well as favorable arguments for their use. In the same way, the essential elements for a proper understanding of the theory of judicial precedents, besides the revocation techniques, are target of specific analysis. The neoconstitutionalist and neoprocessualist conceptions that start to affect the Brazilian Judiciary after the advent of the Constitution of the Republic of 1988 are target of attention in the same way that the arguments against the adoption of judicial precedents in Brazilian law. Then, due to the expansion of techniques of judicial decision’s binding, understood as part of a public policy in favor of reasonable duration of the process, the institutes of binding summary, general repercussion and the New Code of Civil Procedure, with focus on the incident of resolution of repetitive demands, are object of careful study. Finally, in order to deepen the quality of application of judicial precedents in the Brazilian law, it is studied the theory of Ronald Dworkin, with greater focus on law as integrity. It is concluded that the judicial precedents, if well managed, are able to promote an increase in quality of judicial decisions, and also assist the Brazilian Judiciary to achieve the reasonable duration of the process and, hence, the due process of law.