Overview

This book aims to identify the sociological reasons that resulted in the perceived lack of authority of precedents in civil law systems, starting from the premise that common law systems rely on precedents, while civil law systems do not. The reasoning is based on the sociology of law, mainly on Max Weber’s theory, legal theory, and constitutional law. English common law, seen by Weber as a law devoid of formal rationality mainly because it does not allow for generalization and comprehensiveness, became a predictable system through stare decisis. This serves to highlight not only that it is not to be confused with common law but especially to clarify that “binding precedents” are necessary as the law moves away from calculability. The transformation of civil law due to the impact of constitutionalism, the increasingly widespread use of general clauses, and the evolution of the theory of interpretation eliminated the pretensions of logical positivism and, consequently, the predictability upon which it would be achievable. However, if the law contemplated by Weber ceased to exist and the new law came to depend largely on the subjectivity of the judge, this does not mean that society could remain helpless and devoid of guarantees of predictability and equality, as the new profile of civil law could not be compatible with a coherent legal order and a rational distribution of justice. In the end, the book seeks to demonstrate the fundamentality of precedent for the unity and development of law, clarity and generality, promotion of equality, institutional strengthening, limitation of state power, predictability, economic rationality, respect for the law, and increased personal responsibility.

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9783031871603

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Luiz Guilherme Marinoni, Master and Doctor of Laws, Catholic University of São Paulo, Postdoctoral at Università di Milano, Visiting Scholar at Columbia University and Fordham University. Honorary Member of the Presidium of the International Association of Procedural Law, President of the Brazilian Association of Constitutional Procedural Law. Professor at the Federal University of Paraná, Former Federal Prosecutor, Former President of the Brazilian Bar Association, Curitiba. Consultant for the Brazilian “House of Representatives” for the Projects of the Brazilian Civil Procedural Code and the Brazilian Constitutional Procedural Code, International consultant for the project “Principles of Transnational Civil Procedure” (American Law Institute and UNIDROIT). Author of several books published in Brazil, Chile, Colombia, Italy, Mexico, Peru, Portugal, and Spain, and several articles published in important journals in Argentina, Bolivia, Brazil, Chile, China, Colombia, El Salvador, Germany, Italy, Mexico, Peru, Poland, Portugal, South Korea, Spain, and Uruguay. Winner of the 2009 and 2017 Jabuti Prize, and finalist in the 2007, 2010, and 2015 prizes.

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