A força vinculante das decisões do Supremo Tribunal Federal entre precedentes e padrões decisórios : uma análise a partir do controle difuso e concentrado de constitucionalidade no Brasil.

Abstract

This monograph focuses on the effects of decisions of the Supreme Federal Court issued in the exercise of constitutionality control and aims to analyze these effects, especially the binding force, as potential precedent-setters and decision-making standards when the Supreme Court acts in diffuse and concentrated constitutionality control. In these terms, the question is: how do the effects of decisions of the Supreme Federal Court manifest themselves in the context of diffuse and concentrated constitutionality control and how can such decisions be conformed as precedents and decision-making standards guiding the decision-making and binding of other judicial bodies? To answer this question, the hypothetical-deductive research method is used, and the work is divided into three chapters. The first explores the foundations of constitutionalism and neo-constitutionalism, their theoretical, historical and philosophical bases, as well as analyzing the characteristics and origins of the diffuse and concentrated models of constitutionality control. The second chapter is devoted to understanding the effects of decisions handed down by the Supreme Federal Court in the exercise of constitutionality control, addressing the temporal effects, the subjective and objective limits of res judicata, the effectiveness erga omnes and the binding effect, and the controversies regarding the theory of transcendence of determining motives and the “abstractification” or “objectification” of diffuse control. The third chapter delves into the debate on the binding effect exerted by the Supreme Court’s decision-making paradigms, through the analysis of the legal traditions of civil law and common law, the conceptual and conceptual distinction between “precedent” and “decision-making standard”, and the conformation of the provisions of the Supreme Federal Court in the context of constitutionality control as precedents and/or decision-making standards. It is concluded that the same judicial pronouncement of the Brazilian Constitutional Court can function as a precedent or decision-making standard. In concentrated control, decisions do not form formally binding decision-making standards and only their dispositive part binds other jurisdictional bodies, although it is possible to establish theses to create a non-formally binding decision-making standard, or to use the grounds of the decision as a precedent, with hermeneutical binding. In diffuse control, carried out in the context of an extraordinary appeal with general repercussions, it is found that judicial decisions are close to formally binding decision-making standards and can be invoked in the future as precedents, since, in addition to creating a thesis for future cases, the judgment decides the specific case submitted to the Supreme Court.