Uma análise dos precedentes judiciais do direito brasileiro a partir da Teoria dos Sistemas de Luhmann

Abstract

In recent years, there has been a growing interest among Brazilian jurists in the topic of judicial precedents. This thesis proposes an analysis of the topic based on the hypothesis that such precedents can be usefully understood in their connection with the legal institute of assentos. Based on the historical reconstruction of statements to standardize jurisprudence in Brazilian law, the paper proposes an analysis of the functioning of judicial precedents through the theory of law as an autopoietic system (systems theory), proposed by Niklas Luhmann. Following this path, but going beyond the conceptualization proposed by Luhmann, the concept of second-order programs is suggested to understand the function of binding precedents, differentiating them from the programs conveyed by legal texts. In contemporary Brazilian law, precedents assume the function of minimizing the effects of the intensification of access to the judiciary and the increase in contingency regarding the meaning of legal texts. To this end, precedents are recognized, from the internal perspective of the system, as programs that deal with other programs. This type of self-observation produced in the legal system allows the meaning of texts that convey precedents to be immunized, to some extent, from the contingency produced at the level of legal argumentation. This makes it possible for judicial precedents to perform the function of stabilizing the meaning of legal texts and to be applied, almost, as a legal syllogism. Finally, it is concluded that, despite the discourses justifying legislative reforms or legal culture pointing to the need to achieve full “legal certainty”, dogmatic production shows a tendency to preserve, through the defense of concepts such as distinguish and overruling, among other strategies, the variation in the meaning of legal texts, which can be explained as a reflection of the need to maintain the sensitivity of the legal system to the demands of the environment.