The Usefulness of Understanding American Legal Realism for Comprehending Tax Judicial Decisions Not Explained by Legal Positivism

Abstract

This paper examines American legal realism and demonstrates its usefulness for understanding contemporary Brazilian tax judicial decisions that cannot be adequately explained by legal positivism, highlighting the centrality of judicial decisions, the subjectivity of judges, and legal pragmatism. It initially outlines the theoretical context of legal realism, as advocated by authors like Oliver Wendell Holmes Jr. and Jerome Frank, who argue that law is shaped by the experiences and values of judges, in contrast to the rigidity of formalism. The analysis highlights examples from Brazilian case law, such as the “hunger theft” (furto famélico) doctrine, the granting of equal rights to same-sex civil unions, and the Supreme Federal Court’s role during the covid-19 pandemic, before delving into the tax field. In this specific area, it addresses STF Precedent (Tema) 1184, which resulted in CNJ Resolution 547/2024, and STJ case REsp 1.120.295, which created a new statute of limitations rule for the collection of tax debts by Public Treasuries. These cases reveal judicial practices that go beyond the literal wording of statutory rules. The article also discusses the implications of this approach, including the potential for legal uncertainty arising from subjectivity and excessive flexibility in decisions. It proposes that pragmatism, by prioritizing effective and humanized solutions, can modernize the Brazilian legal system, provided it is balanced with predictability and democratic legitimacy. The text concludes by emphasizing the importance of robust reasoning and the integration of law and society to build a more efficient and responsive judiciary for contemporary challenges.