A concepção da ratio decidendi no sistema de precedentes judiciais e sua problemática identificação

Abstract

The objective of this work is to investigate the way the courts, especially the superior courts, have conceived the ratio decidendi and the implications of the conception adopted for the application of judicial precedents. It will take as a starting point doctrinal works that defend the adoption of the doctrine of binding judicial precedents in Brazil as well as the criticisms made to this doctrine, especially those formulated by Lenio Streck in the set of columns titled "tetralogy on the system Brazilian precedent”. With this, the objective is to answer three questions namely: I) In Brazil, the ratio decidendi of a judicial precedent consists in the legal thesis itself extracted from it? II) Must the ratio decidendi be expressly identified by the court from which the precedent emanates? III) Is the judicial precedent synonymous with legal theory? To do so, the deductive method will be adopted as a method of approach, starting with an overview of judicial precedents in order to address general aspects that concern them, to then deal specifically with its binding element whatever the ratio decidendi in the Brazilian legal system. In addition, the indirect documentation research technique which covers bibliographic and documentary research will be used. In this way, it demonstrates that the concept of ratio decidendi of the precedent is closely linked to the concept of legal thesis, having the tendency that this one is identified expressly by the prolator organ of the decision which can contribute the judicial precedent is considered synonymous with legal theory reducing to the ratio decidendi that emanates from it.