A insustentabilidade da cláusula geral de bons costumes: pluralismo e laicidade na sociedade contemporânea

Abstract

The paper problematizes the suitability of the general clause of boni mores in view of the current conformation of Brazilian legal order. In Roman-German matrix systems, the boni mores are traditionally used as a limitation to private autonomy. This guideline is reflected in several restrictive provisions of the Civil Code of 2002. In Brazil, however, the legal, doctrinal and jurisprudential treatment of the boni mores has been marked by the absence of objective demarcations. In general, its application is based on social morality and is focused predominantly on the control of sexual and family living. In this sense, the use of boni mores evinces a homogenizing and unjustified imposition of the model of good life defended by the majority groups. This reality contradicts the legal recognition of pluralism and laicity as important democratic vectors. In addition, it can be noted that the ends sought by the boni mores could be satisfactorily reached through other institutes with more solid dogmatic bases, such as the objective good faith and the public order. In this context, through a theoretical investigation of juridical-dogmatic strand and comprehensive-propositional type, it is concluded by the unsustainability of the general clause of boni mores in the contemporary society.