The Brazilian Judiciary System has a number of problems. Two of these problems, namely the excessive number of lawsuits and the lack of the standardised legal decisions have been proven difficult to resolve.
In Brazil, there is an extreme. In 2015, there were approximately 100 million of lawsuits which is equivalent to 1 lawsuit per 2 inhabitants.
In regards to standardised legal decisions, at present identical cases can be judged in different ways, depending on each judge's thought or the understanding on each State Trial in the country. In fact, it is a reason for insecurity and injustice.
Both Common and Civil Law legal systems intend to provide a solution to these issues.
The Common Law System is not based on the written law and the judges have to build the decision for each individual case. In order to avoid inconsistent decisions, the judge reaches a decision based on how similar case was decided in the past. It is the doctrine of precedent. Thus, the precedents are previous legal decisions. These precedents are binding in the English Common Law System although in the USA the judges may choose to apply or not the precedent.
Besides that, the Common Law System was head by the idea of the "stare decisis et non movere", which determines to "visit" the precedent, respect and stand it.
On the other hand, the Civil Law System is based on the written law which should be the limit to the interpretation of the legal system.
Here, we have a simple summary of the main characteristics of the two Systems.
If on the one hand, in the Common Law or Case Law System (i) the judges build the decision case-by-case; (ii) they decide the case based on the past case (precedent) and (iii) it is based on "stare decisis et non movere"; on the other hand in the Civil Law or Roman Law System (i) the Legislative make the law; (ii) the judges decide based on the written law and (iii) the judges apply and interpret the written law.
The Brazilian Judicial System is based on the Civil Law System. Recently, the New Civil Procedure Code prescribed some important changes in procedural rules to try to reduce the number of cases and appeals and standardise the decisions. Interestingly, the legal doctrine noted that some of those changes were inspired in Common Law System.
Traditionally, the main legal source in Brazil is the law and codes. In this way, the article 4 of the Introduction of the Brazilian Civil Code Law prescribes that the sources of law are: law itself; analogy; custom and the general principles of law.
Legal scholars have mentioned that jurisprudence and doctrine can be used to interpret the law, in line with the classic vision of the Brazilian Legal System. However, at present, even when jurisprudence is repeated and standardised, it is not binding.
Binding a decision is a more recent phenomenon after the enactment of the 1988 Constitution, but in particular, since 2004, following Constitutional Amendment 45. More recently, in March 2016, the New Civil Procedure Code added new instruments to (i) reduce the timeframe for judging cases and (ii) standardising decisions (art. 926 "the higher courts must standardise their jurisprudence and keep it stable, with integrity and coherence.").
In order to resolve these problems with the System, a model for binding precedents was built. There is a list of biding decisions must be followed by all the Courts and Judges in Brazil, according to article 927:
(i) Final decisions of Supreme Federal Court regarding to the abstract control of constitutionality;
(ii) Binding Legal Decisions ("Súmulas Vinculantes");
(iii) Final Decisions on Incident of Accepting a Judgment for a Superior Instance ("Incidente de Assunção de Competência") or Incident of Resolution of Repetitive Demands ("Incidente Resolução de Demandas Repetitivas") and on Extraordinary Appeal and Repetitive Special Appeal;
(iv) The Summary Statements ("Súmulas") of the Supreme Federal Court regarding constitutionality as well as those Summary Statements ("Súmulas") regarding infra-constitutional issues of the Superior Court of Justice;
(v) Position of the plenary or the special body of the Superior Instances, of which the Inferior Trials are bound.
In this way, the current legal doctrine has affirmed that the precedent is a new source of law under the civil procedure. This is illustrated by the word precedent being quoted six times in the New Civil Procedure Code. Hence, it is going to take centre stage in the decision-making process for legal matters in our country.
If we compare the Systems, we may verify that the differences between them are (i) the way to create the precedent in each System and (ii) the circumstances constitute a binding precedent.
Traditionally, in the Civil Law System, the written law is a limit to the interpretation of that System. In Brazil, after the last Civil Code was introduced, legal scholars have interpreted that the Constitutional Principles are the limit to interpretation in the Brazilian System. This change has been enough to create significant dispersion between inferior written law, jurisprudence and legal decisions.
However, recently, the Constitution is no longer the limit for interpreting the law. In October 2016, the Supreme Federal Court ruled that it is acceptable to enforce a criminal decision after the second instance, even if there are appeals to be decided. This is equivalent to declare a possible imprisonment without a definitive decision. This decision is inconsistent with the Brazilian Constitution which prescribes the principle of innocence: "article 5º, LVII-Nobody will be guilty until the final criminal sentence."
Despite of our text is not about constitutional or criminal procedure law, the worst part of that decision is the general repercussion what means that decision will be binging in all the Brazilian Trials.
In conclusion, the Brazilian System has some instruments to standardise decisions, including giving precedents increased value. However, the reliance on precedents is a recent phenomenon and the simple adoption of this instrument may contradict the foundations of the System and the principle of legality when added to the excessive dispersion of legal sources, interpretations and jurisprudence. Hence, reliance on precedents should be done carefully in order not to increase the disrepute of the Judiciary.
*Rita de Cássia Carvalho Lopes is a partner of Brazilian law firm Carvalho Lopes Advogados. Graduated in Law from PUC-SP. Master in Legal and International Sciences from Law School of the University of Lisbon.