Precedents as a means of legal reasoning

the balance of competences between the Legislative and the Judiciary in the decisions concerning fundamental rights and the judicialization of politics

Abstract

The present article aims to address the use of precedents as a form of legal argument, from the use of analogy and inductive reasoning by magistrates, through a methodology that compares Civil Law and Common Law systems. The historical analysis of the use of jurisprudential statements from 1875 until the present day will be confronted with the provisions of the Brazilian Civil Procedure Code as a way of clarifying the use of jurisprudential statements as if they were laws. The idea is to seek greater juridical security on the part of magistrates in using precedents through inductive and non-deductive reasoning. The judicialization of politics arises in this scenario in an attempt to understand the conflicts between the Brazilian legislative and judiciary branches.