SUPREME COURTS AND BÜLOWIAN’S INHERITANCE IN THE JURISPRUDENCIALIZATION OF THE LAW

Abstract

The present article aims to present that the model of Supreme Courts for the formation and application of precedents is the continuity of what is advocated in Process Theory as a legal relationship of Oskar von Bülow, with the demonstration of its incompatibility with democratic processuality. The methodological procedure used consisted of a bibliographical review about supreme courts and democratic processuality. It was possible to demonstrate that, in the Democratic State of Law, the construction and application of precedents must take place in a dialogical-argumentative procedural space based on the logical referent of due process that will enable the understanding of precedents as a legal procedural institute in democracy, without any role of the courts.

Keywords

• supreme courts
• jurisprudencialization of the law
• precedents
• democratic processuality
• due process