31 ago “Sumula Vinculante” Binding Precedent in Brazilian Law.
By Sergio Sardenberg and Francisco A. Fabiano Mendes
The recent development in Brazilian law of a type of binding court decision, known as binding uniform ruling “súmula vinculante”, constitutes a fascinating instance of a convergence or meeting point between the civil law tradition that has shaped Brazilian law and the Anglo- American common law system. In Brazil, as in Continental Europe and the other nations of Latin America, the main sources of the law are the constitution and statutes-notably the various federal codes dealing with diverse branches of the law (the most important being the civil, penal, civil procedure, penal procedure, commercial, labor, tax, mining, telecommunications, water and consumer rights codes) Doctrine (the writings of eminent jurists), and jurisprudence are ancillary sources, designed to assist in the task of clarifying and interpreting statutory provisions. Brazilian judges, attorneys, legislators, and other law practitioners have traditionally sought guidance in the works of Brazilian and foreign legal scholars-particularly those of Western Europe – as to the interpretation of the law and the scope of jurisprudence. Although court decisions have always had a relevant role in the process of interpreting the law, they have never been binding, contrary to the case in Anglo-American law. In other words, there is no concept of “stare decisis” in Brazilian law. The Law of Introduction to the Civil Code (Decree- Law n° 4657 of September 4, 1942-LICC) in its Art. 4 states that in cases of statutory omissions the judge should have recourse to “analogy, custom and general principles of law.” It should be noted that the legal provision in question fails to include jurisprudence among the sources of Brazilian law.