THE EMERGENCE OF BINDING PRECEDENT IN BRAZIL, CHINA, FRANCE AND SWEDEN: A COMPARATIVE STUDY

The doctrine of precedent has a very well-established base in common law jurisdiction legal systems. Conversely, in civil law jurisdictions, the value of judicial precedent is traditionally lower, generally having no more than persuasive effects. This perspective has been changing in the last decade as the pursuit of certainty and equality in judicial outcomes has pushed many civil law jurisdictions to acknowledge judicial precedent as a source of law, assigning them stronger force. This article analyzes the meaningful cultural and legal shift in four different civil law jurisdictions with distinct historical backgrounds: Brazil, China, France, and Sweden. The purposes of this article are to explain how these countries moved towards more deference to judicial precedent and to compare the path and characteristics adopted by each of them. Although all jurisdictions analyzed have the same interest in advancing certainty and equality through a system of precedent, there is not one formula to achieve this goal. This article concludes that precedent has a relevant role even in civil law jurisdictions, although there is an apparent necessity to enhance the methodological understanding of such a role by legal scholars,
practitioners, and courts.