How Efficient Is to Judge by Standards in a Civil Law Country? A Law and Economics Approach on Brazilian's Precedent System

7 Pages Posted: 14 Dec 2017

Date Written: October 16, 2017

Abstract

In civil law countries, the law arises, as a general rule, from a political legislative source that, through popular legitimacy, create norms that make up the legal system, differently from the common law tradition, in which the binding precedents are acknowledged as a legal source. However, recently Brazil has structured a new system of precedents that imperatively binds all the Judiciary, in order to recognize, from here onwards, the normative force of the Brazilian’s Superior Courts decisions, in a system very much alike the judge-made law. Albeit, due to this legal innovation, the question that remains is if this is the most efficient form of judicial decision-making, or if the application and interpretation of law by the Magistrates, in an independent and individual manner, is the best way to judge. For that reason, the present essay analyzed this new Brazilian’s Precedent System on an approach of Law and Economics, considering the proper institutes of this legal doctrine, and demonstrated that the efficiency gains in this new binding system, justifies its application even if it means, for part of the jurists, the reduction of Judges liberty to adjudicate.

Keywords: Precedent, Civil Law, New Civil Procedure Code, Law and Economics, Biding Decision Making

Suggested Citation

Pontes Pinto, Edson Antônio Sousa, How Efficient Is to Judge by Standards in a Civil Law Country? A Law and Economics Approach on Brazilian's Precedent System (October 16, 2017). Proceedings of the RAIS Conference: The Future of Ethics, Education and Research 2017. Available at SSRN: https://ssrn.com/abstract=3085847 or http://dx.doi.org/10.2139/ssrn.3085847

Edson Antônio Sousa Pontes Pinto (Contact Author)

Catholic University of Rondônia ( email )

Brazil

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