Abstract

STRECK, Lenio Luiz. AN ESAY ON THE PROBLEM OF DISCRETION AND WRONG UNDERSTANDING OF COURT PRECEDENTS. Prolegómenos [online]. 2015, vol.18, n.35, pp.67-80. ISSN 0121-182X.  https://doi.org/10.18359/dere.801.

This article is an analysis of judicial discretion seen as a characteristic of legal positivism from the way judicial precedents are understood in Brazil. The main aim of this paper is to demonstrate that judicial precedents are applied arbitrarily by Brazilian jurisprudence and doctrine, revealing the interpretative abuses by the judiciary and the weakening of democracy. The approach is an hermeneutic-phenomenological method, that is, a critical reconstruction of the phenomenon of judicial precedent interpretation. As a result, the document shows the fragility of constitutional democracy before the interpretive discretion of courts from the way precedents are applied in Brazil.

Keywords : Discretion; judicial decision; judicial precedents.

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