A challenge for contemporary civil law:the general clauses malleability
DOI:
https://doi.org/10.5433/2178-8189.2014v18n2p73Keywords:
General clause. Judiciary. Theory of autopoietic systemAbstract
The work aims to draw a contemporary profile of the general clauses, portraying its functional and promotion role that expresses the constitutional principles. The study of the subject will seek to demonstrate that the methodological approach adopted by the Civil Code, providing them with indeterminate legal concepts and general clauses, reflects the opening of the legal system. Based on the studies of the Italian doctrine, particularly in the works of Velluzi and Libertini, the article will try to confront the different meanings that the general clauses may take, seeking to conform a meaning that is more consistent with the Brazilian law. The paper examines the role of the judiciary, focusing the importance of the judge for the content densification of the general clauses, allowing the construction of a solution for the case that absorb all this content based on principles. The study also discusses the theory of autopoietic systems in the conception of Luhmann and Teuber, seeking to demonstrate the complexity and constant mutual intersection of the elements of the system of contemporary law.
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