Teses jurídicas: os limites da construção do direito nos precedentes brasileiros

Abstract

This dissertation examines the limits of legal construction in Brazilian precedents, focusing on the relationship between judicial theses and the ratio decidendi. The study traces the historical evolution of precedents in civil law and common law systems, exploring the unique hybrid model developed in Brazil, particularly after the 2015 Civil Procedure Code. It confirms that the system's effectiveness goes beyond the mere formal binding nature established by Article 972 of the CPC/2015, instead relying on qualitative requirements for the formation of the ratio decidendi, such as robust argumentation and effective adversarial process. The research highlights the problem of undue abstraction of judicial theses, which, when detached from the precedent's factual and legal context, can undermine legitimacy and legal certainty, blurring the lines between judicial and legislative functions. CNJ Recommendation 154/2024, while standardizing case headnotes for organization, risks reinforcing protagonism of the case headnote and the decontextualization of decisive reasons. It concludes that the ratio decidendi constitutes the actual binding core of a precedent, with the judicial thesis serving as a synthesis that must strictly adhere to the concrete case to ensure systemic coherence and stability. The methodology employed combined qualitative and quantitative approaches, including empirical analysis of the adoption of new guidelines by higher courts