O traço instrumentalista na teoria de precedentes brasileira e o afastamento do perfil constitucional democrático de processo

Oskar von Bülow’s Theory of the Legal Relationship of Process and Cândido Rangel Dinamarco’s Instrumentalist Theory revolutionized the concept of legal procedure in the 19th and 20th centuries, bringing undeniable advancements. However, the notion of a constitutional model of procedure challenged this theoretical framework, redefining the process as a fundamental right of the parties rather than an instrument to achieve state objectives. Despite this shift, the instrumentalist paradigm continues to influence Brazilian legal scholarship and practitioners, emphasizing the central role of the judge in the process. This perspective leads to distortions in applying procedural institutes, including the judicial precedent system. It is crucial to analyze how this view affects our understanding of precedents, revealing significant theoretical limitations and potential incompatibility with the historical idea of stare decisis. This research examines how the Instrumentalist Theory conceives judicial activity compared to the Constitutional Theory of Procedure. The findings indicate that the instrumentalist framework fosters the formation of precedents disconnected from substantive aspects, such as the quality of procedural debate and the promotion of hermeneutical advancements in law. Instead, precedents are often applied uncritically to achieve procedural efficiency. Thus, it is necessary to revisit the roles of judges and parties within the judicial process, aligning them with a democratic constitutional model to enhance the Brazilian precedent system’s legitimacy and effectiveness.