Dever de fundamentação das decisões judiciais: o impacto da argumentação jurídica na aplicação dos precedentes

Abstract

The main objective of this research is to analyze, from a neoconstitutionalist perspective, how judicial decisions behave. Therefore, it seeks to analyze the effects generated by judicial decisions, precedents and jurisprudence. In this sense, it points to the importance of these legal elements as forming the Democratic State of Law, since it promises legal certainty, which, in turn, is given by decision uniformity, surrounded by the decision paradigm. However, the search for this uniqueness has aspects that run through some legal systems, namely, Common Law and Civil Law. Thus, it seems evident that precedents may change according to the application to the specific case. In this sense, the study about the distinction of precedents (distinguinshig) and overcoming (overrruling) is deepened, highlighting the role of argumentative logic that involves the duty to motivate judicial decisions, and is responsible for changing precedent.