Precedents and Statutory Law: A Critique of the Brazilian Legal System

This paper examines the challenges of transferring legal institutions between the common law and civil law traditions, with a focus on the application of precedent analysis within the Brazilian legal system. It argues that while both traditions utilize elements of Roman law, their distinct historical development and social constructions lead to fundamentally different approaches to legal reasoning. The paper examines the fundamental characteristics of common law, highlighting the doctrine of stare decisis and the practice of distinguishing, while contrasting these with the civil law tradition's emphasis on codified law and the persuasive, rather than binding, nature of precedent. The increasing trend of "staturification" in common law systems and the limitations of applying stare decisis in civil law contexts are discussed. Ultimately, the paper concludes that the complexities of each system, rooted in unique societal experiences, necessitate careful consideration of these differences when attempting institutional exchange, highlighting the potential risks of disregarding these fundamental distinctions.