FORMAL PRINCIPLES AND OVERRULING PRECEDENTS IN CONSTITUTIONAL COURTS

Abstract

Contextualization: The adjudication of fundamental rights is surrounded by tensions that put normative objectives of complex conciliation against each other. The dispute between the vocation of constitutional courts to correctly interpret fundamental rights in light of the constitution and the need of these same courts to control the predictability of the content of such rights is one of these tensions. This tension resonates in a number of debates in constitutional theory and legal theory. This paper will delve into a specific discussion that has been continuously informed and shaped by the conflicting relationship between the normative values of correctness and predictability in legal discourse: when should constitutional courts maintain or overcome their own precedents? The analysis will focus on the horizontal dimension of the authority of precedents in constitutional jurisdiction, that is, on the influence that a court's previous decisions exert on the institution itself.

Objective: To discuss how the challenge to the authority of constitutional precedents can be controlled argumentatively, that is, to define parameters and argumentative methodologies to evaluate the correctness of the overruling of precedents in constitutional courts.

Methodology: It was used the methodology provided by the theory of principles, applying the model to two decisions of the Brazilian Supreme Court.

Results: The article presented an argumentation model that aims to rationalize the overruling of precedents in situations where present courts are uncertain about what the constitution obligates, prohibits, or permits, and therefore, are unsure if past decisions correctly resolved a clash of fundamental rights. Using the methodology provided by the theory of principles, it is argued that the binding nature of precedents can be seen as a formal principle, which allows for a rational evaluation of the belonging of a given norm to the zone of judicial discretion based on a process of assigning weight to the authority of the precedent. Finally, the model is tested by applying it to two decisions of the Brazilian Supreme Court.