THE GENEALOGY OF BINDING MECHANISMS IN BRAZILIAN LAW: FROM THE PORTUGUESE “ASSENTOS” TO THE SUPERIOR COURTS THESES

Abstract

This essay seeks to trace a genealogy of the “binding mechanisms” in Brazilian law, which have been erroneously taken as ­common-law-like precedents. Based on a historical research, conducted by the hermeneutical-phenomenological “method”, in order not only to unveil the underlying political elements in the Portuguese “assentos” — which were always connected to a centralisation of political power, related to the sovereign’s prerogative for a so-called “authentic interpretation” — but also the strong connection between the assentos and the Brazilian binding mechanisms. These mechanisms, in Brazil, do little else than repeat the goal of conferring to the (supposedly) “Precedent Courts” the power of creating “interpretive laws” — nothing more than general, abstract, prescriptive norms — which would demand at least a constitutional reform.

Keywords

• assentos luso-brasileiros
• precedentes obrigatórios
• direito português
• mecanismos vinculantes