Binding Precedent is a term used in law to refer to a set of decisions of a Superior Court. These decisions are related to cases that deal with similar issues and are judged in a similar way.
Thus, when there are many decisions on common cases, there is a binding summary, which is a rule that defines how a given situation should be decided in a process.
The binding summary emerges from the union of decisions of concrete cases, as it is said in the legal language. It has the force similar to a law and legal bond, that is, the binding precedent it stands as a law and determines that the decision be made that way.
Another feature of the binding summary is the effect lift omnes, this expression, in Latin, means "for everyone". This means that the decision must reach all similar cases.
What is the function of the binding summary?
The binding summary has as its main function reduce legal uncertainty, which can be caused by different interpretations of the same law.
It ensures more uniformity in interpretations, especially on issues where there is disagreement between the bodies of the Judiciary or the Public Administration.
Likewise, the existence of a binding summary helps to alleviate doubts about which interpretation of the law should be adopted in the practice of judgments.
How is the binding summary adopted?
To be adopted, the binding summary must be voted on and approved by two thirds of the members (ministers) of the Federal Supreme Court (STF). The STF has 11 ministers, therefore, the binding summary must be approved by at least 8 ministers.
What does the Supreme Court do?
The STF is the highest body of the Brazilian Judiciary Power. It is responsible for protecting the Federal Constitution and verifying the correct application of the rules contained therein.
Among its main functions are the judgment of direct actions of unconstitutionality, declaratory actions of constitutionality and allegations of non-compliance with a fundamental precept.
In addition to these functions, the STF is responsible for vote and approve the binding summaries. This only happens after, in several cases, similar decisions are taken in cases involving the same rights and the same application of the law.
Editing, revising or canceling a summary with binding effect is also done by the STF.
Origin of the binding summary
The binding summary has existed since 2004, after the publication of Constitutional Amendment No. 45, which became known as the Judiciary Reform.
Amendment No. 45 added article 103-A to the text of the Federal Constitution:
Art. 103-A. The Federal Supreme Court may, ex officio or by provocation, by decision of two thirds of its members, after repeated decisions on the matter constitutional, to approve a summary that, as of its publication in the official press, will have binding effect in relation to the other bodies of the Judiciary and to the direct and indirect public administration, at the federal, state and municipal levels, as well as to review or cancel it, in the established manner in law.
The operation of the binding summary was regulated by law nº 11.417/06. The law defines that only the following persons or bodies can request the editing, revision or cancellation of a binding summary:
- President;
- Board of the Federal Senate;
- Board of the Chamber of Deputies;
- Attorney General of the Republic;
- Federal Council of the Brazilian Bar Association;
- General Public Defender of the Union;
- Political parties with representation in the National Congress;
- Trade union confederations or national class entities;
- Bureau of the Legislative Assembly or the Legislative Chamber of the Federal District;
- State or Federal District Governor;
- Superior Courts, State or Federal District Courts of Justice, Federal Regional Courts, Regional Labor Courts, Regional Electoral Courts and Military Courts.
See also the meanings of Jurisprudence and Judicial power.