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oai:doaj.org/article:1827155269a446f7b815b3aa269b1682

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STARE DECISIS, INTEGRITY AND LEGAL SECURITY: General Considerations TO THE APPROXIMATION OF THE COMMON LAW AND CIVIL LAW SYSTEMS
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Abstract

O Objective study analysing the new way of interpreting and applying the law established on the basis of the centrality of human and fundamental rights in the second half of the 20th century, which led the judiciary to dominate the political and moral decisions of the State, making it a traditional judge-made-law role in common law systems. The aim is to examine the possibilities of predictability and legal certainty in the common law, which is more closely related to the process of law building. For that reason, the work brings civil law and common law systems closer together within the constitutional jurisdiction, especially in the substantive constitutional review carried out on the basis of human or fundamental rights. He advocates using the doctrine of stare decisis, which is in turn compatible with the legal model as Dworkin’s integrity in order to ensure legal certainty, predictability and stability of judicial decisions in contemporary society. In order to carry out such a reflection, the argument is divided into two parts, one turning to the reasoning and the other to the proposition. The first part of the work historically disagrees on civil law and common law systems. Notes that the Revolution of Human Rights and the judicialisation of politics are reasons for the expansion of judicial review in a number of countries. He points out that the substantive basis of human rights has a moral content and serves as a parameter for judicial review in both systems, whether they are expressed, implicit or unwritten in a constitutional document. The second part examines the doctrine of binding precedents and their characteristics and chances of being exceeded. From a reading of Dworkin’s ‘right as integrity’, it can be concluded that the adoption of the stare decisis doctrine applying the principle of integrity in judicial decisions within the framework of the Brazilian Constitutional Court is factable, which will ensure consistency, stability, predictability and legal certainty in relation to its decisions. Keywords: Civil Law and Common Law. Judicialisation of the Policy. Contemporary Society. Brazilian constitutionalism. Human Rights. Integrity. Legal Security.

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