Um direito de cláusulas gerais? sentido e limites.

Abstract

In another aspect, a law that hitherto would have founded on the Justice case law abstract, unique and immutable, created by human reason. have legal positivism, but contrary to what one might expect this caraterizou- in the Law by refinement of the technique, the isolation of the legal phenomenon in relation to social reality. This awakens us to the substance, with books like The End of Law and the Fight for the Right. Should be taken against the backdrop of the French Revolution, terminating an entire historical epoch and opens in too bloody way, the door to the Contemporary Age, which we still live. Unfortunately, what could be a promising movement is abruptly truncated by the emergence of Nazism in World War 39-45, the two atomic bombs dropped on densely populated cities and the subsequent division of the world into two great hostile blocks. The new guidance also was based on the awareness of the human person, which appears as an "upgrade" of the individual, which had dominated the century. Although also raise objections, the emergence of social shocks and the formulation of collectivist doctrines, the system was imposed by those who took advantage of it. Perfect to institutes like the general negotiating clauses that express this new attention paid to the substance of the legal systems. Exalts to the contrary the law, deified as a product of universal Reason and at the same time expressing the will of the people. It bears the stamp of subjectivism, individualism much of himself that has become dominant with the industrial revolution; and voluntarism, which justify the assumed linkages: the contract obliges because it was dear, whatever its content. But this ideal law could be reduced to writing and put into effect as law. The role of the judge is still further limited by the jury, which is also an ideological institution imposed on the grounds that expressed the sovereignty of the people. We have what we call the mechanism - the judge, upon request, as dictated that automatically legal solution. There are positive aspects, such as the postwar reaction in Germany, won big, and aroused social sensitivity.