Súmula vinculante e acesso à justiça: natureza e conseqüências jurídicas no estado brasileiro

Abstract

The increasing prosecution for judicial decisions, deriving including the refinement of the democratic institutions with 1988 Constitution, brought to Judiciary Power a never seen number of processes and demand qualities very different (individual rights, collective, homogeneous individual, diffuse). That is what it gets used to call of conflict judicialization phenomenon. In this way, informed about numberless administrative measures, technologies, masses demands managing and whatever it develops, has grown the idea that Superior courts (nowadays only Supreme Federal Court) publish summula propositions with obligation effect not only to the characters of the judicial process (as traditionally) but also with irradiated and obligatory to who is not part of the demand, creating this way a new king of primary rule, a new figure in the wide model we call legislation. Something still unusual on native Law, inspired on the Roman-German vein: the judiciary power creating abstract and general rules with extra autos effects. This essay talks about the conflict between this new figure and constitutional principles, and the principle quality in the after positivist constitutional interpretation, based on the democratic consideration which conduct the Law in this country. Also it talks about how the Justice System, the independence in exercising the jurisdiction and another base principles of a nation which intends to the democratic are affected. This essay follows the constitucional principiology and hermeneutics research line