REGIME DE PADRÕES DECISÓRIOS VINCULANTES: ENTRE O DISPOSITIVO ANTI-HERMENÊUTICO E A RESPOSTA CORRETA

BINDING DECISION STANDARD: BETWEEN AN ANTI-HERMENEUTIC DEVICE AND THE RIGHT ANSWER

Abstract

Lawmakers allowed certain public players and courts to convey what the law requires, based on a concept of formally binding authority, seeking to reduce the complexity of Law to simple statements, which would be then applied to future cases. The overall goal is to critically investigate the binding decision standard, as a legal category outlined by lawmakers, based on the Law as Integrity theory. The aim is to approach the following issue: was the binding decision standard, as provided for in the Code of Civil Procedure, in the Act of Introduction to Brazilian Law Norms, and in the Federal Constitution, conceived for the purposes of arriving at right answers? The hypothesis is that the binding decision standard stands as an anti-hermeneutic device, which main objective is only to ensure predictability, conceding the reproduction of wrong answers, diverting from the virtue of Integrity. The hypothetical-deductive method is used, including bibliographic research, dialoguing with the relevant Brazilian legislation. The theoretical legal basis will be Ronald Dworkin’s Law as Integrity theory, which will not preclude a critical reflection based on contributions of Jeremy Bentham, Michel Foucault, and Giorgio Agamben. In the conclusion, the hypothesis was confirmed. The formally binding decision standard, understood from Foucauldian categories, stands as an anti-hermeneutic device, unlike precedent. Creative interpretation emerges as a counter device, understood as resistance, in which the prevailing legal concept is Law as integrity.