Interpretação e aplicação das súmulas vinculantes e a cláusula "se for o caso": para uma análise crítica da pretensão de "aplicação automática" das súmulas vinculantes

Abstract

This paper is a critical analyze by the interpretation and application of the binding judicial precedent, under the premise that they should be seen as real subordinate normative texts, created by the Supreme Court of Brazil from the interpretation and application of the Constitution in recorded cases. Thus, being normative texts, the binding judicial precedent is treated in order to establish a treatment according to the Constitution, with focus on the necessary mediation by the interpreter, according a discursive theory of argumentation in the legal hermeneutics and constitutional jurisdiction, second the paradigm of the rule of law, considering the specific constituents of sense of the case being judgment. It is emphasized that, in the judgment, the binding judicial precedent should be interpreted and applied only if it was appropriated to the solution specifically requested in the case, in light of the constitutional legal system, which should be justified in reasons for the decision, and not simply as a presupposition.