SYSTEMATIZATION OF PRECEDENTS AND LEGAL SYSTEM: PROPOSAL OF A THEORETICAL PARADIGM

Abstract

There is not yet a theory about the systematization of precedents, and the normative system model conceived by positivism for the legal order is used in an unthinking way, which results in the pyramidal and hierarchical structure of unidirectional relations. It is a foundationalist model. Thus, precedents are reduced to norms and staggered according to the degree of the enacting court, and their incompatibilities are treated as antinomies. Notwithstanding, such a model does not fit the precedents, which cannot be reduced to norms, since they are a hermeneutical gain, having variable binding force. Consequently, inconsistencies are not antinomies. It requires a coherentist system model based on substantial relations of dialectical logic, which structure the whole in a network of mutual multidirectional interactions, and its eventual inconsistencies are solved by measuring the hermeneutic force. This paper intends to demonstrate the inadequacy of the foundationalist model by proposing a complex legal system formed by two subsystems: a normative – composed by constitutional, legal and regulatory norms, whose structure tries to be pyramidal - , and another one of precedents - structured in a network, and formed by the decisions of the multiple courts that has generated a hermeneutical gain for the legal system as a whole.