The Brazilian legislation and the post-positivist judicial thought departed from the
traditional model of strict legal conduct to the wider approach of the primacy of
principles. General clauses and indeterminate legal concepts require of the
administrator of the law to act within the scope of specific weighting. This broader
textual stance on constitutional and infra-constitutional legislation came to require
a hermeneutical activity leaning towards a case-by-case approach of
administration of justice in the historical context of collectivization of judicial
demands, which calls for compromise with the effect of binding precedent and the
principle of legal certainty, in order to assure equality before judicial discretion.
Reflective to those phenomena, the concept of civil law was gradually found
insufficient, followed by a natural leaning towards that of the common law having
the same rational decision process to legal cases of binding nature. The issue
raised in the Brazilian legal order did not go unnoticed by the Commission on
Reform of Civil Procedure Rules, which by the New Civil Procedure Code, enacted
by the Law nº 13.105/2015, inaugurated the Incident of Resolution of the
Repeated Demands so that the instability generated by the normative uncertainty
could be conformed and legal cases of the same nature would have the same
decisions. This research proposes to apply the innovations of the New Civil
Procedure Code to the Internal Rule of the Tocantins Supreme Court – the central
object of this dissertation – and to determine the way by which such instruments
are to be implemented, mainly in assurance of a scenario of democratic and
dialogical debate, based on rational arguments, as to ensure the stability of
affirmed understandings and the materialization of the principles of legal certainty
and equality.
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