By Gustavo Silveira Vieira
The stare decisis doctrine, applied for a long time by the common law countries, is expressed by the famous aphorism stare decisis et non quieta movere ("what was decided must be respected"). The trustworthiness and stability of the precedent must be ensured by the very members of the Court that has rendered it.
In this perspective, Article 926 of the New Code of Civil Procedure provides that "the courts must make their case law uniform and keep it stable, whole, and coherent." Under paragraphs 1 and 2, in turn, "in the manner and according to the prerequisites set out in the internal rules of procedure, the courts must approve abridgements corresponding to their prevailing case law," and, "in the approval of their abridgements, the courts shall abide by the factual circumstances of the precedents that have given rise to their creation."
Respect for the precedent must be praised in view of several isolated issues reflected in the whole society, like legal security, equality, and reasonable duration of the proceedings, since it would not be coherent if two citizens with identical rights received opposite judgments when seeking court relief within the same system.
The law must be subject to being determined and calculated for everyone, including those that do not have minimal knowledge of legal matters. The citizens must be able to guide their actions and calculate the respective consequences based on a safe environment, knowing that, should they need to resort to court, they will not need to just hope for one decision or another. Indeed, a whole and cohesive system must protect the rights in an aligned manner, with no setbacks.
In addition, the use of a binding precedent serves to discourage exacerbated litigation, which is undeniably a pathological problem in Brazil. Its application tends to come to the aid of the Judiciary as well, considering that, if the courts cannot overcome the volume of work that knocks every day on their doors, there is nothing more coherent than restraining claims whose outcome may be ascertained from the outset.
It is unquestionable that many judges are not welcoming of the theory of mandatory precedents, mainly because this doctrine would supposedly violate their independence. However, the much-talked-about independence cannot supersede the law considered as a unit, since the primary goal of the judge is to decide the case the fairest possible way, just as a piece of a gear that plays its part of making the justice dispensation system equitable. Accordingly, it seems quite clear that a decision that contradicts a court precedent will not be providing an idoneous service to the legal system.
We have already reached the point of putting a stop to the old speech that the judge′s freedom is hurt when he is forced to decide in accordance with the Higher Courts. The judge does not decide for himself, and it is irrelevant for the system whether or not his own personal position differs from the Courts above him. Beyond the freedom to render the judgment, the judge has a duty towards the citizen and the society, and it is not acceptable for the decision to be a mountain to be avoided - by the filing of appeals - in order for, only by accessing the Higher Courts, the citizen to be able to take advantage of a decision that should have prevailed from the beginning.
The legal security, a permanent aspiration of the civil law countries, effected by means of codification, can only be achieved when it is made clear that in a coherent and safe system it is inconceivable that the Judiciary - seen as a whole - tries equal cases in different ways, in plain disrespect for the equality principle.
