The efficiency of Brazilian justice has been a historic challenge. There is an excess of demands overloading the system, causing procedural delays. According to the latest survey carried out by the National Council of Justice (CNJ) and published in the report Justice in Numbers 2024, with data from last year, there are at least 84 million lawsuits pending in Brazil.
This problem tends to affect the economy as a whole. Expenditure on court-ordered debt and payments by the Federal Government, for example, has risen from an average of 0.32% of GDP in 2012-2014 to 0.86% in 2022-2024. Judicialization is obviously driving these figures.
Of course, there are countless factors that influence the number of court cases, but there is a need to find a solution to this problem. With a view to improving this context, a number of legal mechanisms have been introduced into the Code of Civil Procedure (CPC), including the encouragement of out-of-court dispute resolution, conciliation, mediation and, especially, the system of binding precedents. The latter is a legal mechanism that, if well implemented, can bring more predictability, uniformity and speed to the Judiciary, reducing the number of cases.
Roughly speaking, the concept of judicial precedents dates back to Anglo-Saxon law, where decisions by higher courts are binding on lower courts in similar cases, ensuring coherence in the system and consequently reducing litigation. In Brazil, the adoption of precedents was strengthened with the CPC in 2015, which brought in the so-called “system of binding precedents”. In this organization, decisions by higher courts in repetitive appeals, general repercussions and binding precedents must be followed by lower courts.
As in other countries, the formation of precedents in Brazil occurs through decisions in paradigmatic cases which, as a rule, deal with relevant and repeated issues in the judiciary. Once established, these precedents should guide the decisions of lower courts. A practical example is the application of theses established by the Federal Supreme Court (STF) in cases of general repercussion, which obliges judges throughout the country to follow the guidance adopted, avoiding conflicting decisions.
However, the application of precedents in Brazil faces some significant problems. One of the main challenges is the cultural resistance of legal practitioners, who still see precedents as mere guidelines rather than binding rules. This attitude generates legal uncertainty, with divergent court decisions for identical cases.
Another recurring problem is the lack of clarity and objectivity in the reasoning behind precedent-setting decisions. They are often long and complex, which makes it difficult for lower courts and the parties involved to understand exactly what legal interpretation has been set. In addition, the excessive number of issues brought before the Higher Courts is also a worrying issue, as it overloads these Courts and ends up diluting the quality of the decisions.
The solution to these problems is, first and foremost, a change in legal culture. Judges and lawyers need to better understand the importance of precedents and see them as essential instruments of efficiency and uniformity. In addition, the formation of precedents must be more careful, prioritizing cases of real relevance and ensuring that decisions are clear and objective. Another important point would be greater supervision and enforcement of precedents, including stricter sanctions for those who unjustifiably break them. The CNJ has issued important resolutions in this regard.
One example of the impact that an efficient system of binding precedents can have is on the resolution of claims involving social security benefits. According to the study “The judicialization of social security and welfare benefits”, carried out by the Instituto de Ensino e Pesquisa (Insper) for the Department of Judicial Research of the National Council of Justice (DPJ/CNJ), from 2015 to 2019, there was a 140% increase in the number of cases requesting the granting or review of social security and welfare benefits in the federal and state courts. This work assessed more than 18 million cases and analyzed 1.3 million court decisions. Standardization can have a significant impact by establishing an understanding that binds the judgment of all these lawsuits.
Therefore, the correct use of the system of precedents can bring considerable advances to the efficiency of the Brazilian justice system. Uniform decisions and a reduction in repetitive litigation are paths to a more agile and predictable judiciary.
