The principles of Civil Law are divided into sociability, ethics, and operability , as highlighted in the statement of reasons prepared by Miguel Reale.
However, before anything else, it is worth highlighting the concept of principles in Civil Law:
“The concept of legal principle, as well as that of law, is far too complex to admit, at first glance, a unitary definition (…) In general, principles can be considered as guiding thoughts of a legal regulation”, according to the doctrine of the illustrious Amaral.
These principles of Civil Law, in fact, are the foundations, the basis, for the creation of civil norms by the legislator.
Now, we will proceed to a detailed assessment of each of them: sociability, ethicality, and operability.
Principle of Sociability
According to the principle of sociability, collective rights and values should always prevail over individual rights and values.
Therefore, it can be stated that this principle brought to the Civil Code a different perspective from that adopted by the previous code of 1916, which had a somewhat more individualistic view.
Certainly, the principle of sociability is also responsible for several social advances, one example being the extension of parental authority to women, as provided for in article 1631.
This shift in perspective shows us that the principle of sociability has the function of inspiring the creation of norms capable of keeping pace with social progress, aiming at the satisfaction of collective interests.
According to the majestic Miguel Reale, one of the objectives of the Civil Code was to overcome the individualistic and selfish character of the previous codification.
In this way, it is emphasized that the word "I" is modified by "we." Furthermore, civil law institutions clearly have a social function, such as contracts, businesses, property, possession, family, and civil liability.
Principle of Ethics
The second principle of civil law is that of ethicality; in short, it is based on the values of the human person, on ethics, and on good morals.
Undoubtedly, the principle of ethical conduct is embodied in Article 113 of the 2002 Civil Code, which provides:
"Legal transactions must be interpreted in accordance with good faith and the customs of the place where they are entered into."
In summary, the principle of ethical conduct guides the creation of norms that are always based on ethical premises, prioritizing the observance of good faith, equity, and other ethical criteria.
According to Tartuce 's brilliance , the principle of ethicality:
"This involves valuing ethics and good faith, especially that which exists in the realm of the parties' conduct and loyalty (objective good faith)."
Principle of Operability
Finally, according to the principle of operability, law must be created to produce effects . That is, law must be effective in bringing about change on a social level – and not merely be a codified norm without applicability.
This principle also brought about a change in perspective compared to the 1916 Civil Code, which addressed several legal concepts in an obscure manner, such as prescription and forfeiture.
Today, these institutions have an independent and clear definition in the legislation.
Therefore, the change brought about by the principle of operability was based on the simplification and objectivity of the provisions of the new Code, in order to fulfill the function of facilitating the understanding of the Law, and consequently, its applicability.
Similarly, Tartuce states that:
"This principle has two meanings. First, that of simplicity or simplification of private categories, which can be seen, for example, in the differentiated treatment of prescription and forfeiture."
Secondly, there is the sense of effectiveness or concreteness, which was sought by the open system of general clauses adopted by the current substantive codification.
Other principles of Civil Law
According to the esteemed Amaral, there are also the "Institutional Principles of Civil Law" which serve as the foundation for respective institutions, such as:
- The principle of human dignity applies to personality rights.
- The principle of equality between spouses (CC, arts. 1.511, 1.565 and 1.566) and children (CC, art. 1.596) applies to family law;
- The principles of private autonomy, good faith, equity, and social function apply to contract law.
- Principle of the social function of property (CC, art. 1.228, § 1) for real rights;
- The principle of patrimonial liability within the context of civil liability.
Thus, it becomes clear that principles are the foundation that will provide you with a basis for solid argumentation in Civil Law. They unquestionably contribute to building your authority as a legal professional.
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