Ulysses and the Constitution: a possible critical hermeneutics of the civil-constitutional contemporaneity

Abstract

The text presents itself as an essay arising from post-doctoral research in Private Law and is organised in nine short, interrupted sections, using metaphors instead of the usual reference citations, proposing a dialogue with the applications of Quantum Chaos in contemporary Brazilian civil-constitutional law. Starting from the formation of modern civil law, it describes how Solid Modernity, the Enlightenment and deterministic rationalism established the Civil Code as the centre of the private world, sustained by the Exegetical and Pandectist schools and by the canons of completeness, certainty and coherence. It follows the passage from a formally hierarchical and pyramidally closed systematisation of rules to a teleological, open and axiological system, composed of values, principles and rules of differing normative density, associated with the normativity attributed to the Constitution, the direct effect of fundamental rights in private law and human dignity. It discusses the postulates of axiological unity, mobility, openness and intersubjectivity, and maintains that the legal system is complex, sensitive, dynamic and non-linear, so that the apparent disorder of case law would reveal a pattern described by Chaos Theory. It addresses the substantive constitutionalisation of civil law, its de-patrimonialisation and re-personalisation, and warns against the risk of a constitutional pandectism.