JULIET IS NOT READY TO BE A MONTAGUE – THE UNION OF THE TWO JURIDICAL SYSTEMS AND THE NEED OF A NEW METHODOLOGY OF LAW FOCUSED ON PRECEDENTS

Abstract

: It is recurrent in the academia the claim that civil law and common law systems are getting closer. Culturally, though, we don’t study properly in Brazilian Law Schools how precedents are used.How they are made, which normative material extract from them, and other important questions, are left aside to the detriment of a analysis more focused on analyzing and interpreting statutes. This ends up affecting judicial rulings in the sense that the responsible for the decision don’t have the preoccupation of clarifying the criteria they have used to differentiate the case in question from others and the criteria to hold a future case as similar and rule it in the same way. Such union between systems gets harmed given that judicial decisions from higher courts increasingly influence rulings made by judges from inferior courts. We can, or at least we should be able to, extract a norm with a similar structure to a rule from a ruling. This norm should be able to dictate how judges and courts can and should behave in the future when facing a case with similar properties. A change in attitude is necessary both from academia – that should focus on procedimental and empirical questions – and from higher courts, especially the Supreme Court, in leave it clear what they intend to be understood as precedents from inferior courts.