A segurança jurídica e o direito à proteção contra a mudança: a nova LINDB e os limites e possibilidades do novo regramento das mudanças interpretativas sobre conceitos jurídicos indeterminados

Abstract

This research examines whether transitional rules can be characterized as instruments of normative continuity or mechanisms for mitigating the effects of abrupt changes in jurisprudential interpretation of legal norms founded on indeterminate concepts. Such changes may arise from modifications to the legal provisions in force or alterations in their normative meaning through the processes of interpretation and application of the law. To address this primary objective, include recognizing (or not) the right to transitional regimes as a subjective right and investigating the role of jurisprudence in the Brazilian procedural system, particularly after the enactment of the 2015 Brazilian Code of Civil Procedure, which placed greater emphasis on the normative authority of precedents. This investigation reveals that promoting legal certainty, particularly in its dimension of predictability, requires normative continuity. This means recognizing that changes to the legal framework, although inevitable, should not be implemented abruptly or unpredictably for those subject to it. Transitional rules emerge as mechanisms to attenuate the impact of normative changes, providing an effective "legal cushioning" system to mitigate the effects of such modifications.The justification for this inquiry lies in its aim to fill an academic and doctrinal gap by examining the scope and limits of applying new interpretative rules in procedural law. Additionally, the study seeks to clarify the boundaries and possibilities of applying Article 23 of the new Law of Introduction to the Norms of Brazilian Law (LINDB), considering its introduction into Brazilian law as a meta-norm that serves as an interpretative guide for other legal norms. This provision also concretizes the legal principle of legal certainty, a principle of paramount importance. The discussion addresses whether the scope of transitional regimes established under Article 23 of the LINDB is confined to public law relationships or whether their effects can also extend to private law. .The central hypothesis posits that the new provisions introduced in the LINDB establish a framework for recognizing the right to transition in situations involving changes to established judicial interpretations. As introduced by the LINDB, these provisions serve as interpretative guidelines applicable across all branches of law, not merely confined to public or private law disputes. Instead, they appear to create a right to legal certainty, responding to the legislator's acknowledgment of the prevalence of legal uncertainty. The analysis, of a theoretical-applied nature, is juridico- scientific, prescriptive, and follows a discursive and argumentative approach. It also incorporates the collection and evaluation of decisions comprising domestic jurisprudence and, where relevant, references foreign legal doctrine and case law. The conclusion establishes the necessity of creating transitional regimes in situations where preexisting rights grounded in prior judicial interpretations are infringed. This aligns with Article 927, §3, of the Brazilian Code of Civil Procedure, which mandates such measures to preserve legal certainty. This requirement applies to all legal relationships, including private law relations, as indirect recipients of the legal provisions introduced by Article 23 of the LINDB.