A major difference between Brazil and the U.S. is the legal system of these two countries. In America there is what is called common Law and in Brazil what is named civil Law. In civil Law the legislative enactments are emphasized. On the other hand, in common law systems, the right is created or refined by judges: a decision to be made in a case depends on the decisions taken to the previous cases and affects the right to apply to future cases. In this system, when there is a precedente, judges have the authority to create the right, setting a precedent.
The body of precedent is called common Law and binds all future decisions. When the parties disagree about the applicable law, a Court ideally would seek a solution among the decisions of previous courts. If a similar controversy was resolved in the past, the court is obliged to follow the reasoning used in that earlier decision (principle known as stare decisis).
However, if the court finds that the controversy in question is fundamentally different from all previous cases, decide as a "matter of first impression" (matter of first impression in English). Later, this decision becomes a precedent and will bind future courts under the principle of stare decisis. In the Civil Law, the main feature consists in the fact that the right is predetermined by the rules, which most often are arranged in codes, however, suffers some influence of the jurisprudence and doctrine.
As Brazil follows the civil law tradition, all the judicial and administrative decision must be based on the law, making the principle known as legality effective, in accordance to which nobody is obligated to do or not do stop doing anything but expressly following the legal dispositions. The Federal Constitution is the highest law in the country and all the other laws and regulations must be in compliance with the constitutional laws.
As opposed to what happens in countries that follow the common law, the leading cases do not have the same strength, not entailing the judges’ decisions to lawsuits that deal with the same matters.
At last, it is important to mention that the common law systems have been adopted by several countries, especially those of England inherited its legal system, such as the UK, most of the United States and Canada and the former colonies of the British Empire. On the other hand, the civil law was adopted by countries which was a legal system originated from Italy and German, as Brazil.
