Legal system and axiological unity: the methodological contours of constitutional civil law

Abstract

The work discusses the methodological contours of Constitutional Civil Law on the basis of the order inaugurated by the 1988 Constitution. It situates the exhaustion of classical civil law theory — Pandectism, the Historical School, the Jurisprudence of Concepts and the School of Exegesis — and the intolerance towards the fragmentary discourse of micro-systems, drawing on the conception of the legal system as an open, topical and axiologically hierarchised network of rules, principles and values enacted in the legal order. It examines the process of gradual densification from abstract values and principles to the individual rules governing the concrete case; systematic interpretation, in which every interpretation of law is, in some sense, constitutional interpretation; the vertical and horizontal effect of constitutional rules in relations between private parties; and Brazilian judicial review, which combines the diffuse and the concentrated methods. The text holds that the axiological unity of the system alters the content of the rules of the code, in the wake of the enactment of a Social State replacing the Liberal State, and leads to the repersonalisation and depatrimonialisation of Civil Law, with the publicisation of the private through the interaction of the principles of the legal order.