The Latin expression jure et facto encompasses the dual foundation—legal and factual—indispensable for the validity and effectiveness of procedural and decision-making acts. Transversal to all branches of Law, the institute requires that any claim or judicial command be anchored simultaneously in the positive norm (de jure) and in the evidentiary reality of the events (de facto), ensuring compliance with due process of law and legal certainty.
Concept and Foundation
The jure et facto maxim synthesizes the binomial essential to jurisdictional activity: the subsumption of fact to norm. Legally, the expression designates the need for unequivocal demonstration that the alleged right finds support in a proven factual situation, and that this situation is subsumable to the current legal system. The legal nature of the institute is that of a structuring principle of the burden of proof and the reasoning of judicial decisions.
In Brazilian Civil Procedural Law, the correlation between law and fact is the pillar that supports the initial petition and the judgment. The cause of action, composed of factual and legal grounds (art. 319, III, of the Code of Civil Procedure), requires that the magistrate, when issuing the judicial provision, analyze the evidence produced (factum) and apply the correct norm (jus), under penalty of nullity due to lack of reasoning or error in judgment.
Historical Origin and Evolution
The origin dates back to Roman Law, where the distinction between quaestio facti (question of fact) and quaestio juris (question of law) was fundamental for the division of competencies between the praetor and the judex. While the praetor established the legal formula, the judge was limited to verifying the veracity of the narrated facts. With the evolution of the Rule of Law, this dichotomy was integrated into the duty to provide reasons for decisions, culminating in the contemporary model where the judge is sovereign in the valuation of evidence and the interpretation of the law.
Legal and Constitutional Provision
The requirement for jure et facto reasoning is inscribed peremptorily in the 1988 Federal Constitution, in its article 93, item IX, which imposes the nullity of any judicial decision that does not present the proper reasoning. At the infra-constitutional level, the following stand out:
- CPC/2015, art. 489, § 1º: Establishes that a decision is not considered reasoned if it is limited to the indication, reproduction, or paraphrase of a normative act, without explaining its relationship with the cause or the decided issue.
- CPC/2015, art. 373: Distribution of the burden of proof, requiring the plaintiff to prove the constitutive fact of their right (jure et facto) and the defendant the impeding, modifying, or extinguishing fact.
- Code of Criminal Procedure, art. 381: Requires that the sentence contain a concise exposition of the factual and legal grounds upon which the decision is based.
Practical Application and Jurisprudence
Brazilian Superior Courts have consolidated the understanding that the lack of congruence between fact and law leads to the restriction of defense or the nullity of the decision. The Superior Court of Justice (STJ), in special appeals, repeatedly reaffirms that the court of origin cannot reform decisions without the legal reasoning (jus) being strictly linked to the facts outlined in the appealed judgment (factum), prohibiting the re-examination of evidence (Súmula 7/STJ).
Within the scope of the Superior Labor Court (TST), the application of the principle is observed in the analysis of review appeals, where the reasoning must demonstrate the legal violation (jus) based on facts already established by the Regional Court (factum), under penalty of non-cognizance of the appeal (Súmula 126/TST).
Related Principles and Doctrinal Divergences
The jure et facto principle is closely related to the principle of congruence or adstriction, which obliges the magistrate to decide within the limits of the request. Doctrinal divergences arise in the application of the maxim iura novit curia (the judge knows the law). While some jurists argue that the magistrate has the freedom to apply the law regardless of the reasoning brought by the parties, others maintain that such freedom must be mitigated by the adversarial system, preventing the fact from being legally valued without the prior manifestation of the litigants (prohibition of surprise decisions, art. 10 of the CPC).
Contemporary Relevance
In the era of digital jurisdiction and artificial intelligence applied to Law, the requirement for jure et facto reasoning becomes even more critical. The automation of drafts and the use of decision models cannot dispense with the individualized analysis of the facts of each case. Contemporary legal certainty depends on maintaining this rigor, ensuring that the Judiciary does not become an instance of mechanical application of norms, but rather an organ that understands the factual singularity in light of the legal norm.
Legal and Jurisprudential References
- BRAZIL. Constitution of the Federative Republic of Brazil of 1988. Art. 93, IX.
- BRAZIL. Law No. 13,105, of March 16, 2015. Code of Civil Procedure. Arts. 319, 373, 489.
- BRAZIL. Decree-Law No. 3,689, of October 3, 1941. Code of Criminal Procedure. Art. 381.
- SUPERIOR COURT OF JUSTICE. Súmula No. 7: "The claim of simple re-examination of evidence does not give rise to a special appeal."
- SUPERIOR LABOR COURT. Súmula No. 126: "Review appeal or embargoes for re-examination of facts and evidence are inadmissible."
