BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

should be included. These decisions are based on a set of methods that are sometimes incompatible or inconsistent with each other or even based on misreadings of authors such as Ronald Dworkin or Hans-Georg Gadamer, as the judges may confuse the “overriding” of methods with a “free allocation of meaning.” Thus, the defense of judicial activist positions, the growth of panprincipalism and jurisprudential fragmentation are all caused by the same core problem: the subtle reservation of the philosophical paradigm of consciousness in constructing the theories and doctrines of the law. Judges to justify his or her individual decisions invoke a primitive pragmatism. These decisions do not lead to a consistent point that is capable of unifying disparate sentiments and accommodating them within a context of integrity. Thus, interpretive chaos comparable with Hobbes’s state of nature (i.e., a type of State with a hermeneutic nature) eventually occurs. Given this vexing, fragmented decision-making process, the legal establishment has responded by creating bureaucratic mechanisms that ostensibly offer an answer to this maze of decisions and, at the same time, lead to streamlined access to justice that, by virtue of the constitutional extension of demands, has also exhausted the system. Thus, the reform undertaken by Constitutional Amendment 45/2004, which became known as Judicial Reform, has established two mechanisms in the wake of the issues raised on this topic (i.e., the súmulas vinculantes [binding precedents] 13 and the repercussão geral [general repercussion]). 14 Thesetwo mechanisms are structural responses to a paradigmatic problem. Thus, there is no point in establishing precedents or other binding mechanisms, as is the case with general repercussion, if we do not address the problem that caused the current legal framework to become fragmented, relativistic and subjective. In other words, we must overcome the philosophy of consciousness and its resulting creation: the solipsistic subject (Selbstsüchtiger). Knowledge is more than a relationship that exists between a subject and an object. Rather, knowledge is an encounter that occurs from a history and a tradition. Overcoming these problems is a hermeneutic task. 13 Súmulas Vinculantes (Binding precedents) are statements created by the Supreme Court. In these statements, there are decisions iterated by the court on certain matters put on trial. The Brazilian system is peculiar in that these binding statements are binding on the Supreme Court itself, on lower courts and on administrative bodies (cf. Art. 103-A of the FC). What is puzzling is that the precedents are not exactly unprecedented because they are abstract, general statements that purport to resolve future cases, whereas the common law precedents are established from particular experiences to solve the primal case in dispute and only indirectly have repercussions on future decisions. However, common law precedents are also not law because they emanate from the highest body of the judicial branch. The binding precedents represented a longstanding vindication for a significant portion of the Brazilian jurists. The justifications for adopting such mechanisms have always conformed to a pragmatic factor: an excessive number of repetitive demands whose cause is always charged to the constitution (Art. 5, paragraph XXXV), which significantly expanded access to justice and the difficulty of controlling the meanings of the judges’ interpretations. 14 In line with problems involving excess processes, the exhaustion of the system because of the proliferation of resources and the means to review decisions to be judged by the courts, the mechanism of Repercussão Geral (General Repercussion) appears to hinder the entry of new features that are to be analyzed and judged by the FSC. To this extent, the extraordinary resources bandied about will only be accepted if they can demonstrate, in the theory underlying the demand, the existence of the General Repercussion previously recognized by the court. Therefore, the general repercussion is a filter designed to prevent any demand from reaching the Supreme Court of Brazil.

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