Portuguese 
English 
Spanish 
5 min of reading 
0 comments 
Experts Say That The Draft Of The New Civil Code Could Expand The Judges’ Interpretative Power, Create Legal Uncertainty, And Boost Judicial Activism On Issues Such As Contracts, Family, And Successions.
The draft of the Civil Code presented by the president of the Senate, Rodrigo Pacheco (PSD-MG), is pointed out by specialists as a text that expands the judges’ scope of action by introducing broad and poorly defined concepts.
Legal experts claim that the combination of open terms and internal contradictions tends to stimulate judicial activism and increase the judicialization of conflicts.
Open Terms And Interpretative Margin
One of the main points of concern is the repeated use of vague expressions, such as “social function”, “best social interest”, and “prosperity”, without objective parameters.
-
The Senate approves a bill that criminalizes misogyny, hatred, or aversion towards women, and includes the crime in the Racism Law with a penalty of up to 5 years.
-
Chamber Approves Bill That Allows Pepper Spray for Women Over 16 and Imposes Strict Rules for Purchase, Possession, and Use as Self-Defense
-
Chamber Approves Law to Combat Leucaena, Fast-Growing Plant That Dominates Land and Threatens Native Species in Various Regions of the Country
-
Asset Division: Know What Cannot Be Divided in Case of Divorce
According to civil law experts, the absence of clear boundaries shifts the task of giving content to the rules to the courts.
This design, they say, grants unusual discretion to the judge, who begins to define the practical scope of provisions according to the specific case.
Attorney Katia Magalhães, a specialist in civil liability, argues that the draft “dangerously” transfers responsibilities from the Legislative to the Judiciary.
For her, the text “is full of undefined definitions” and “places an enormous decision-making margin in the hands of judges,” which endorses judicial activism and favors case-by-case solutions.
“Code Made For The Judge,” Say Experts
Professor Judith Martins-Costa, associate professor and doctor of law from USP, assesses that the proposal tends to intensify the already high judicialization in the country.
In her words, “this is a Code that was made for the judge. It was not made for the citizen.”
According to the civil expert, the draft accumulates contradictions, technical errors, and “an enormous amount of chameleon words,” that is, concepts that do not accurately integrate with legal vocabulary.
For Martins-Costa, the normative language should be as determined as possible to reduce disputes.
She emphasizes that in law there are technical terms with consolidated meanings, such as “mora,” which allows for predictability.
When the wording deviates from this standard and relies on indeterminate concepts, the expected result is more conflict and more room for divergent interpretations.
Judicial Activism And The Idea Of “Juristocracy”
In practice, the interviewees state, the architecture of the text outsources the production of norms to the jurisprudence.
Katia Magalhães describes this effect as a kind of “juristocracy,” in which judges shape the effective content of rules based on open notions.
The risk, she says, is the creation of an environment “incompatible with the very concept of law,” by breaking the generality and impersonality that characterize legislation.
Still in this vein, the attorney notes that, if approved, the broad discretion could shield abusive practices under the argument that “it says so in the code.”
The legislator, she continues, would end up relinquishing their own autonomy by delegating to judges the task of defining the scope of clauses and obligations.
Family Law And Successions: “Affective Abandonment” And Psychological Offense
Family Law appears as one of the most sensitive fields to the adoption of open terms.
Among the provisions cited by experts is the one that provides for the loss of inheritance not only for physical aggression but also for “psychological offense” or “affective abandonment”.
These are expressions without closed legal definitions, which, according to legal experts, opens the door for disparate readings depending on each judge’s understanding.
The criticism does not ignore the relevance of curbing violence and omissions in the family environment.
However, it emphasizes that indeterminate concepts, when not accompanied by objective criteria, increase legal uncertainty, raise litigation, and complicate the predictability of outcomes, especially on sensitive issues such as parentage, alimony, and succession.
Contracts And The Nebulous “Social Function”
In the contractual field, the provision for nullity of clauses that contradict the “social function of the contract” rekindles the discussion about how far the State — via judicial decisions — can interfere in private autonomy without precise delimitations.
Legal experts emphasize that the social function is already a known principle, but warn that the lack of operational criteria in the text under discussion increases the power of judicial review of agreements, impacting investments and transaction security.
This caution does not intend to eliminate the control of abuses.
The point, according to specialists, is that clear boundaries are essential to guide behaviors, reduce disputes, and avoid disparities between courts, while maintaining the peculiarities of each case.
Technical Language And Predictability
According to Venceslau Tavares Costa Filho, professor of Civil Law at the University of Pernambuco, the proposal promotes “hyperinflation of vague or indeterminate terms,” which grants judges the power to “create the law of the specific case” by filling in such expressions.
In his analysis, the project, instead of promoting judicial self-restraint with specific rules, tends to reinforce activism by multiplying open concepts — a scenario that, he claims, increases legal uncertainty and imposes social risks.
The use of shared and technically precise language, experts point out, serves as an antidote to unnecessary controversies.
When all actors — citizens, businesses, administration, and judiciary — start from stable notions, the chance of dispute decreases, and the application of the law becomes more uniform.
Systemic Impacts And Legal Safety
The fundamental criticism targets the balance of powers and legal safety.
Without appropriate normative delimitations, the trend is that conflicts currently resolved by clear rules migrate to the realm of judicial evaluations, with solutions that fluctuate over time and space.
This affects everything from civil and business contracts to family relations, civil liability, and successions.
In addition to potential economic effects — by raising compliance costs and risk premiums — the perception that “what the judge understands counts” can dissuade settlement and fuel litigation.
The Brazilian legal literature has long debated the need to calibrate open principles with norms of concrete application, legislative policy that, for the interviewees, is not sufficiently covered in the text being discussed.
What Is At Stake For Congress
The debate in Congress, therefore, is not limited to wording adjustments.
For the legal experts interviewed, it is about defining how much discretion the legal framework intends to attribute to the magistrates in the realization of rights and duties.
At the same time, lawmakers are called to weigh whether the proposed normative architecture ensures the necessary predictability for civil life and economic activity.
The final legislative decision will indicate whether the new Code will opt for principles with boundaries and operational rules — a path that seeks to reduce the space for arbitration — or whether it will consolidate a model that expands interpretations based on expressions that, by nature, require judicial completion.
In light of the arguments presented by Martins-Costa, Magalhães, and Costa Filho, what should be the ideal measure between flexibility and legal safety in a Civil Code that aims to guide the daily life of millions of Brazilians?
Seja o primeiro a reagir!