(DIS)SIMILARITIES BETWEEN THE FIGURE OF THE PRECEDENT IN THE COMMON LAW LEGAL TRADITION AND IN BRAZILIAN LAW

• Main Authors: Flávio Quinaud Pedron, Lucas Borges Santos, José Emílio Medauar Ommati
• Format: Article
• Language: English
• Published: Universidade do Estado do Rio de Janeiro 2021-08-01
• Series: Revista Eletrônica de Direito Processual
• Subjects: constitutional state; due process; precedents; fundamental rights
• Online Access: https://www.e-publicacoes.uerj.br/index.php/redp/article/view/48065/37809

The main objective of this work is the establishment of a historicalconceptual distinction between the figure of precedent in the common law legal tradition, the environment in which it was conceived, and in Brazilian law, which was influenced by the legal tradition of civil law. The institute's analysis in the context of the common law runs through its historical contextualization, primarily through the theories developed by Frederick Schauer, Cass Sunstein and Ronald Dworkin. In Brazilian law, we seek to understand the normative rule of the standard over time, especially in the area of civil procedural law. To do so, the research is developed from a legal-theoretical methodology, using bibliographical analyzes for the theoretical construction of the theme, with the scope of substantiating, in a substantial way, the specificities of the normative development conferred to the institute of the precedent in their legal traditions.