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Acknowledgements This electronic thesis or dissertation has been downloaded from the King’s Research Portal at https://kclpure.kcl.ac.uk/portal/ The Brazilian Model of Precedents a New Hybrid between Civil and Common Law? Alves Dias De Souza, Marcelo Awarding institution: King's College London The copyright of this thesis rests with the author and no quotation from it or information derived from it may be published without proper acknowledgement. END USER LICENCE AGREEMENT Unless another licence is stated on the immediately following page this work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International licence. https://creativecommons.org/licenses/by-nc-nd/4.0/ You are free to copy, distribute and transmit the work Under the following conditions: Attribution: You must attribute the work in the manner specified by the author (but not in any way that suggests that they endorse you or your use of the work). Non Commercial: You may not use this work for commercial purposes. No Derivative Works - You may not alter, transform, or build upon this work. Any of these conditions can be waived if you receive permission from the author. Your fair dealings and other rights are in no way affected by the above. Take down policy If you believe that this document breaches copyright please contact [email protected] providing details, and we will remove access to the work immediately and investigate your claim. Download date: 30. Sep. 2021 This electronic theses or dissertation has been downloaded from the King’s Research Portal at https://kclpure.kcl.ac.uk/portal/ Title: The Brazilian Model of Precedents a New Hybrid between Civil and Common Law? Author: Marcelo Alves Dias De Souza The copyright of this thesis rests with the author and no quotation from it or information derived from it may be published without proper acknowledgement. END USER LICENSE AGREEMENT This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported License. http://creativecommons.org/licenses/by-nc-nd/3.0/ You are free to: Share: to copy, distribute and transmit the work Under the following conditions: Attribution: You must attribute the work in the manner specified by the author (but not in any way that suggests that they endorse you or your use of the work). Non Commercial: You may not use this work for commercial purposes. No Derivative Works - You may not alter, transform, or build upon this work. Any of these conditions can be waived if you receive permission from the author. Your fair dealings and other rights are in no way affected by the above. Take down policy If you believe that this document breaches copyright please contact [email protected] providing details, and we will remove access to the work immediately and investigate your claim. PhD Thesis The Brazilian Model of Precedents: a New Hybrid between Civil and Common Law? Marcelo Alves Dias de Souza A thesis submitted for the degree of Doctor of Philosophy King’s College London – KCL The Dickson Poon School of Law 2013 Declaration I certify that the thesis I have presented for examination for the PhD degree of the King’s College London - KCL, The Dickson Poon School of Law, is solely my own work other than where I have clearly indicated that it is the work of others (in which case the extent of any work carried out jointly by me and any other person is clearly identified in it). The copyright of this thesis rests with the author. Quotation from it is permitted, provided that full acknowledgement is made. This thesis may not be reproduced without the prior written consent of the author. I warrant that this authorisation does not, to the best of my belief, infringe the rights of any third party. Marcelo Alves Dias de Souza 2 Acknowledgements My first thanks go to Dr Eva Steiner and Dr Lorenzo Zucca, my supervisors at the King's College London – KCL, The Dickson Poon School of Law. They are, each in their own way, responsible for the submission of this thesis. I also wish to express my gratitude to Dr Duncan Fairgrieve and Dr Teresa Wambier, the examiners of my PhD, for their challenging evaluations my thesis. I must thank, for all the support in London and/or the reading of this thesis, Damian Fitzpatrick, Clare Canton, Jess Yeong, Renata Barreto, Hidji Helinski, Charles Phelan and Mônica Reis. I reiterate my thanks to the Brazilian Federal Public Prosecution Service (Ministério Público Federal do Brasil), including my colleagues and all the staff, who stoically endured my absence to conduct my research in Britain. My thanks also go to the King’s College London – KCL and the University of London, safe ports in my long journey overseas. I will miss my friends and the books I found on shelves of the Strand Campus, the Maughan Library and the Library of the Institute of Advanced Legal Studies (IALS). I must also thank my parents: thank you for what you gave and still are giving to me. Finally, my thanks to the true Creator. Marcelo Alves Dias de Souza 3 Abstract This thesis offers, in response to the challenges of a globalised world, a coherent systematisation of the Brazilian model of precedents as a new hybrid between civil and common law. Conceptual and broadly comparative (constantly drawing knowledge from the English common law), it presents how precedents are understood and how they operate in Brazil. This thesis systematises the concepts and establishes a consistent vocabulary for the categories of creativeness, declarativeness, persuasiveness and bindingness of precedents, which can then be comprehended by both Brazilian and English audiences. In addition, it creates a unique reference to be applied in the comparative study throughout the thesis. This thesis also analyses the practical uses of precedents in Brazil and then compares them to the English model. It discusses how judges in Brazil deal with concepts such as the ratio decidendi, the distinguishing and the overruling of precedents. As the last few decades in Brazil have seen a clear increase in the use of precedents in terms of frequency, creativity and bindingness, this thesis offers a comprehensive taxonomy of the several Brazilian binding precedents that are expected to progressively transform the Brazilian approach to precedents into an example of a hybrid model. This thesis focuses on the new and very important Supreme Court’s Binding Súmula (a category of binding precedent introduced into Brazilian law by Amendment 45 to the Federal Constitution, passed in 2004), analysing its origins, features and significance under a dual perspective that could be interesting for both common and civil law traditions. This thesis finally focuses on some of the advantages of the doctrine of stare decisis – stability, certainty of law, equality, time- saving –, as positive criteria of functionality, in order to analyse improvements in the deliverance of justice in Brazil since the adoption of a more comprehensive approach to binding precedents. The last chapter also presents and debates some strengths of the new Brazilian approach to precedents, emphasising that the Brazilian mix of civil and common law elements has proven to be a very synergic model. Identifying many of the problems of Western precedent models as well as suggesting some solutions, this thesis aims to be used as a tool for both researchers and those dealing with law reform and to contribute to the development of the theory of precedents in both civil and common law legal worlds. Keywords: 1 – Conceptualism. 2 - Comparative Law. 3 - Common Law. 4 - Civil Law. 5 - Theory of Precedents. 6 - Brazil. 4 Contents 1 Introduction ........................................................................................................................... 8 1.1 Measuring the Importance of Precedents from a Mixed Common and Civil Law Perspective ............................................................................................................................. 8 1.2 Methodology: Conceptualism and Comparative Law as Tools ..................................... 14 1.3 The Structure of the Thesis............................................................................................ 23 2 The Judicial Law-Making in Brazil .................................................................................... 26 2.1 General Considerations ................................................................................................. 26 2.2 The Influence of Continental Europe on Brazil’s Legal History ..................................... 27 2.3 Recent Common Law Influxes ....................................................................................... 30 2.4 A Later Discovery of the Common Law Jurisprudence ................................................. 34 2.5 Declarativity and Creativity of Precedents in Brazil ....................................................... 41 2.5.1 The Issue ................................................................................................................. 41 2.5.2 The Debate Surrounding the Violation of the Principle of Separation of Powers and Other Relevant Questions ................................................................................................ 43 2.5.3 A Critical Systematisation ....................................................................................... 48 2.6 Persuasive and Binding Precedents in Brazil ................................................................ 50 2.6.1 The Issue ................................................................................................................
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