Post by account_disabled on Mar 14, 2024 4:12:59 GMT -4
“ It matters how judges decide cases. ” [1] With this sentence, Ronald Dworkin begins the first chapter of his Law's Empire , when dealing with what Law is, in an exemplary exercise of synthesis, making it clear that it is not simply an object to be known, but a product the interpretation and application of laws by judges.
On the one hand, Dworkin's happy expression highlights the content of Law, because in the same way that the meaning of a word, in a language, is determined by the ways in which it is used by a community of speakers, in specific contexts, norms Legal entities only materialize their content through their application to concrete cases, placed sub judice . On the other hand, it makes it clear that it is not enough to just know “what the judges decide”, but it is also necessary to identify how such a conclusion was reached, which arguments and reasons were relevant to the decision-making, to so that the coherence of the result can be controlled.
Although Brazilian Law was developed in the B2B Lead wake of the legal tradition of civil law , with the recognition of Law as coming exclusively from legislative texts, the currently current model distances itself from this extremism [2] , to recognize the need to interpret legal rules by judges, densifying its semantic content in light of concrete circumstances. The CPC/2015 itself, in its article 927 [3] , makes clear the normativity of the jurisprudence resulting from the set of applications of the legislation and establishes, in its article 926, the duty of the courts to maintain it stable, integral and coherent, giving I emphasize the need to understand the reasons for deciding that prevail in each case.
Parallel to the development of judicial jurisprudence, in the administrative sphere there is a progressive change in the way legality is understood, recognizing its natural indeterminacy and establishing a “self-binding” model of determination of the content of the rules to be applied.
This self-linking of public administration, explains Gustavo Marinho de Carvalho, makes it possible to establish decision-making guidelines generated internally, through its own bodies, which begin to delimit its scope of action, such as the editing of regulations, summaries, normative instructions and, also , decisions of administrative judgment bodies ( Administrative precedents in Brazilian law . São Paulo: Contracurrent, 2015, p. 115-119).
In the same way that judicial precedents construct a jurisprudence that should serve as a guide for judges and, above all, for citizens and the State to guide their actions, administrative precedents — as manifestations of the administration's self-binding — must construct a jurisprudence (this of administrative nature), whose integrity, stability and coherence must be maintained by the judging body, mainly due to the subsidiary and supplementary application of CPC/2015 to administrative processes, by virtue of its article 15.
The STF, in the judgment of Interlocutory Appeal 62.811/RJ, in an erudite vote by Minister Bilac Pinto, had long ago recognized the relevance of administrative bodies with decision-making functions, very similar to the jurisdictional [4] , due not only to certain decisions taken in this context, they require highly specialized technical knowledge, which is not usual in career judges [5] , but also because they exercise a function of reducing discretion in the application of the law, improving legal certainty in relations between the State and the administered.