A RESOLUÇÃO DE CASOS DIFÍCEIS A PARTIR DO PENSAMENTO DE NEIL MACCORMICK: A NECESSIDADE DA ANÁLISE DE PRECEDENTES DAS SUPREMAS CORTES DE NAÇÕES DEMOCRÁTICAS

Abstract

The purpose of this article is to investigate the possibility of applying Neil MacCormick's ideals in the resolution of difficult cases with worldwide repercussion, in light of the analysis of precedents of the Democratic Supreme Courts. The importance of the theme is given by the need to strengthen the interpretation and application of Law in the face of the General Theory of Law, as well as to establish a true culture of precedents, especially in difficult cases, thus guaranteeing legal certainty. For that, from the deductive method, with bibliographical research, jurisprudential and legislative analysis, at first a diagnosis was made both on the foundations of Neil MacCormick's theory, and on the use of his teachings by the Brazilian Courts. Then, there was a need to use its concepts for the application and interpretation of Law in difficult cases judged by different nations, focusing on the criteria of coherence and universality. Afterwards, a proposal was made on the need for judicial motivation of decisions related to the conclusions of other Courts in democratic countries in similar cases. Finally, as a concrete example, the global discussion on the telematic interception of digital communications endowed with end-to-end encryption was chosen, which, if analyzed under the thought of MacCormick and respecting precedents, could serve as a source of greater legal certainty, effectiveness and impartiality in judicial decisions.