Tutela jurisdicional mediante precedente judicial: a adequada proteção do ordenamento jurídico no modelo do justo processo

Abstract

The process that claims to be considered due must provide adequate judicial protection of the rights, any rights. The legal system, as a set of texts with normative authority, can validly present needs for judicial protection, resulting from the crisis of certainty of law and the crisis of the justice system. The rights to legal certainty and procedural effectiveness must be protected by differentiated protection. The claims of the legal system regarding the provision of differentiated judicial protection may not be rejected. In our times, procedural law scholars and researchers are assigned the mission, therefore, of developing appropriate procedural techniques to provide adequate judicial protection, capable of efficiently and fairly resolving the various problematic situations arising from these chaotic environments. Based on these premises, the present research, developed in the Master’s program of the Graduate Program of the Faculty of Law of the Federal University of Minas Gerais, carried out from March 2018 to March 2020, intended to advance the study on the precedent, aiming at the procedural technicization of this legal institute, so that, in the court of post-positivism, judicial protection appropriate to the legal system was objectively considered. The theory of the study was set before the due process of law and, more specifically, the theoretical imperatives arising from it: the development of procedural techniques and the specialization of judicial protection. Obedience to these two commands allows the model of due process to take a fluid form in its constant theoretical evolution, as it will always be equipped with procedural techniques for the protection of rights and will also be updated on the announced needs by material law. The positive system of judicial precedents is now viewed as a procedural technique developed by the legal community in order to meet the demands presented by the legal system, which are resolved by specialized judicial protection: the judicial precedent. This differentiated jurisdictional protection is addressed to the legal system itself, in order to protect, in a plural, objective and socially widespread dimension, the rights to legal certainty and procedural effectiveness. The research has an interdisciplinary character, with investigations in the fields of the general theory of law, philosophy of law, legal hermeneutics, civil procedural law and constitutional law. Keywords: LEGAL SYSTEM. JUDICIAL PRECEDENT. POST-POSITIVISM. BRAZILIAN LEGAL CULTURE. DUE PROCESS OF LAW. PROCESSUAL TECHNIQUE. SPECIAL FORM OF JUDICIAL PROTECTION. RIGHT TO LEGAL CERTAINTY. RIGHT TO PROCEDURAL EFFECTIVENESS.