Unanimity consists of the maximum degree of consensus reached within a collegiate body, characterized by the absolute convergence of votes or opinions on a given matter. Within the scope of Legal Sciences, the institute transitions between Procedural Law (Civil, Criminal, and Labor), Tax Law, and Constitutional Law, acting at times as a validity requirement for specific acts, and at others as a defining criterion for the stability and binding force of precedents and judicial decisions.
1. Concept and Legal Nature
From a technical-legal standpoint, unanimity is the expression of the integral will of a deliberative body, where no factual or legal dissent is observed among its members at the moment of the decisum. It differs from qualified majority and simple majority by requiring the total adherence of all eligible voters.
The legal nature of unanimity is multifaceted: it qualifies as a deliberation rule (procedural) and, in specific cases, as a condition of effectiveness or validity for normative or administrative acts. On the procedural level, unanimity alters the appealability and the judgment technique, functioning as a seal of presumption of legal correctness that confers greater authority to the ratio decidendi established by the court.
2. Historical Evolution and Comparative Perspective
Historically, the requirement for unanimity dates back to the roots of Germanic Law and the jury system of the English Common Law. In the Anglo-Saxon system, the unanimous verdict in the Jury Tribunal was seen as a fundamental guarantee against state arbitrariness, a principle that still prevails in the United States (consolidated by the Supreme Court in the ruling Ramos v. Louisiana, 2020, requiring unanimity for criminal convictions in state and federal jurisdictions).
In Brazil, the Romano-Germanic tradition (Civil Law) favored the majority system. However, unanimity has always held a prominent place in Commercial Law (current Corporate Law) and Tax Law, as a mechanism for protecting minorities or preserving the federal pact. Brazilian legislative evolution demonstrates that, although majority is the rule, unanimity is reserved for situations of extreme political or economic sensitivity, where dissent could compromise the stability of the system.
3. Legal Provision and Normative Framework
The application of unanimity finds support in several fundamental legal statutes of the national legal system:
- Civil Procedure Code (CPC/2015), Art. 942: Establishes that when the result of an appeal is not unanimous, the judgment shall continue with the summoning of new judges (collegiate expansion technique). Here, unanimity is the criterion that waives the extension of the debate.
- Supplementary Law No. 24/1975, Art. 2, § 2: Requires the unanimity of the States and the Federal District, within the scope of CONFAZ, for the granting of exemptions, incentives, and tax benefits related to the ICMS (state VAT).
- Federal Constitution, Art. 103-A: Although the Binding Precedent (Súmula Vinculante) requires a two-thirds quorum (qualified majority), the pursuit of unanimity is the doctrinal goal for social pacification, and its absence frequently motivates requests for the modulation of effects (Art. 27 of Law 9.868/99).
- Corporations Law (Law 6.404/76): Provides for unanimity in cases of company transformation (Art. 221), unless otherwise provided in the bylaws, protecting the essential right of the shareholder.
4. Practical Application and Consolidated Jurisprudence
The jurisprudence of the Superior Courts has given rigorous contours to the interpretation of unanimity, especially regarding the technique of Art. 942 of the CPC. The Superior Court of Justice (STJ), through its Third Panel (REsp 1.733.820), consolidated the understanding that the expanded judgment technique applies only when there is a reform of the merits decision on appeal by a majority, and is not necessary if the unanimous decision merely confirms the sentence, reinforcing procedural celerity.
In the Supreme Federal Court (STF), unanimity is frequently debated in the context of ICMS. In ADI 5902, the court reaffirmed the constitutionality of the unanimity requirement in CONFAZ for granting tax benefits, aiming to curb the "fiscal war" between federal entities. The understanding is that breaking unanimity would violate the federal pact established by the 1988 Charter.
In the Superior Labor Court (TST), unanimity in Panel decisions prevents, as a rule, the admissibility of Appeals to the Specialized Subsection I on Individual Disputes (SDI-1), when the decision is in accordance with a precedent or jurisprudential orientation (Art. 894, § 2 of the CLT), evidencing the "shielding" effect of a unanimous decision.
5. Related Principles and Doctrinal Divergences
The institute of unanimity dialogues directly with the following principles:
- Principle of Collegiality: Unanimity is the maximum expression of this principle, ensuring that the judicial provision reflects the perfect synthesis of the body's thought.
- Legal Certainty: Unanimous decisions generate greater predictability and stability, reducing the propensity for dilatory appeals.
Doctrinally, there is relevant criticism regarding "artificial unanimity." Authors such as Lenio Streck point out that the excessive search for consensus can lead to the burying of dissenting votes that are fundamental for the evolution of Law. Dissent, although it breaks unanimity, fulfills the role of a "seed" for future jurisprudential changes (the dissenting opinion of American Law).
6. Contemporary Relevance and Practical Impacts
Currently, unanimity acts as a rationality filter. In the system of binding precedents introduced by the CPC/2015, the strength of a precedent is proportional to the quorum of its formation. Unanimous appellate decisions have a lower probability of reform in extraordinary instances, as they demonstrate a solid exegesis without interpretive fissures among peers.
Furthermore, in the scenario of procedural digitalization and virtual environment judgments, unanimity has been used as a criterion for maintaining cases on summary judgment lists. The existence of a single highlight or dissent moves the case to in-person/synchronous judgment, reaffirming that unanimity is the prerequisite of legal evidence.
Legal and Jurisprudential References
- BRAZIL. Constitution of the Federative Republic of Brazil of 1988. Brasília, DF.
- BRAZIL. Law No. 13.105, of March 16, 2015. Civil Procedure Code.
- BRAZIL. Supplementary Law No. 24, of January 7, 1975. Provides for agreements for the granting of exemptions from the tax on operations related to the circulation of goods.
- STF. Direct Action of Unconstitutionality (ADI) 5902. Rapporteur: Justice Marco Aurélio. Judged in 2020.
- STJ. Special Appeal (REsp) 1.733.820/SC. Rep. Justice Nancy Andrighi, Third Panel, judged on 10/02/2018.
- STF. Binding Precedent No. 10. A decision by a fractional body of a court that, although not expressly declaring the unconstitutionality of a law or normative act of the Public Power, excludes its application, in whole or in part, violates the full bench reservation clause (CF, art. 97).
